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TRIAI. 


OF 


.ROBERT  M.  GOOBtl 

■ 


ON  AN  INDICTMENT  OF  MANSLAUGHTER 


FOR  KILLING 


JAMES  STOEEHLTGN,  ESQ. 

IN  BROADWAY,  IN  THE  CITY  OF  NEW- YORK, 


On  the  21st  (lay  of  December,  1810. 

TRIED  AT  THE  COURT  OF  GENERAL,  SESSIONS  OF  THE  PEACE  HELD.  IN 
AND  FOR  THE  BODY  OF  THE  CITY  AND  COUNTY  OF  NEW-YORK. 
INCLUDING  THE  ARGUMENTS  OF  COUNSEL  AND  OPINIONS 
AND  ORDERS  OF  THE  COUR.T  ON  A  MOTION  TO  BAIL 
THE  PRISONER,  PREVIOUS  TO  HIS  TRIAL,  AFTER 
THE  FINDING  OF  A  COR.ONER’s  INQUEST 
OF  WILFUL  MURDER,  AND  A  VER* 

DICT  BY  A  GRAND  JURY  OF 
MANSLAUGHTER. 


AND  A  FURTHER  MOTION  TO  BAIL 

|  On  the  Petit  Jury  being-  Polled  and  Disagreeing  in  their  Verdict,  and  being  finely 
Discharged  at  the  close  of  the  Session,  after  a  Trial  which  lasted 
five  days,  having  began  on  the  14th  and  ended  on 
the  18th  day  of  March,  1820. 


AND  ALSO  A  MOTION  TO  BAIL 

On  a  Writ  of  Habeas  Corpus  before  His  Honour  the  Mayor,  at  hi- 
office  in  the  City-Hall.  And  a  like  motion  before  flis  Honour 
Chief  Justice  Spencer,  at  his  Chambers,  -with 
his  Opinion  and  Order  to  admit 
tile  Prisoner  to  Bail.  J». 

— ■* 

TAKEN  IN  SHORTHAND 

BY  WILLIAM  SAMPSON, 

Counsellor  at  Law. 


■  -=ai«t®|®®|»l»ic= 

NEW-YORK  : 

PRINTED  BY  G.  L.  BIRCH  k  CO. 
No.  39£  Frankfort-Street, 

1820. 


SOUTHERN  DISTRICT  OF  NEW-YORK,  ss. 

BE  IT  REMEMBERED,  that  on  the  twenty-eighth  day  of  March,  in  the  fortv- 
lourth  t  ear  of  the  Independence  of  the  United  States  of  America,  William  Samjtsor:, 
esquire,  of  the  said  district,  hath  deposited  in  this  office  the  title  of  a  book,  the  right 
whereof  he  claims  as  proprietor,  in  the  words  and  figures  following,  to  wit : 

“  The  trial  of  Robert  M.  Goodwin,  on  an  indictment  of  manslaughter,  for  killing 
James  Stoughton,  esq.  in  Broadway,  in  the  city  of  New-York,  on  the  21st  of  December, 
1819.  Tried  at  the  Court  of  Gcueral  Sessions  of  the  Peace,  held  in  and  for  the  body  of 
the  city  and  county  of  New-York.  Including  the  arguments  of  counsel,  and  opinions  and 
orders  of  the  court  on  a  motion  to  bail,  after  the  finding  of  a  Coroner’s  inquest  of 
wilful  murder,  and  the  verdict  of  a  Grand  Jury  fer  manslaughter.  And  a  further  mo¬ 
tion  for  bail  on  the  Petit  Jury  being  polled,  disagreeing  in  their  verdict,  and  being 
finally  discharged  ;  the  trial  having  began  on  Tuesday,  the  1-lth  of  March,  and  ended 
on  Saturday  the  18th.” 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  entitled,  “  An  Act  for 
the  encouragement  of  Learning,  by  securing  the  copies  of  Maps,  Charts,  and  Books 
to  the  authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned.’'  And 
also  to  an  Act,  entitled,  “  An  Act,  supplementary  to  an  Act,  entitled,  an  Act  for  the 
cncouragment  of  Learning,  by  securing  the  copies  of  Maps,  Charts,  and  Books  to 
the  authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned,  and 
extending  the  benefits  thereof  to  the  arts  of  designing,  engraving,  and  etching  historical! 
and  other  prints.” 

G.  L.  THOMPSON, 

Clerk  of  the  Southern  District  of  New-York. 


+  • 

ADVERTISEMENT. 

his  report  was  undertaken  under  the  auspices  of  public  favour* 
compiler  was  desirous  of  making  his  labours  serviceable  to 
profession  and  the  public,  and  few  cases  had  ever  occurred 
ch  promised  a  more  ample  field  of  instruction  and  rational  cu- 
ity. 

’hat  he  might  not  be  a  loser  of  labour,  time,  and  money,  as  often 
pens  to  the  publishers  of  useful  works,  many  of  the  most 
lectable  of  our  community  became  subscribers  in  advance  upon 
credit  of  the  author.  In  return  for  this  confidence,  he  has 
towed  great  pains  upon  the  work,  and  fixed  upon  it  (for  the 
scribers)  the  lowest  price  that  it  would  admit  of,  to  afford  him 
in  ary  indemnity. 

t  contains  the  proceedings  of  nearly  ten  days,  and  pa*rt  of  several 
tits.  What  the  labour  and  attention  requisite  to  follow,  without 
emission,  the  course  of  so  many  arguments  and  discussions,  to 
iscribe  from  shorthand  notes,  in  which  no  person  could  assist, 
nany  eloquent  speeches  that  could  not  but  lose  by  omission  or 
nge,  and  at  the  same  time  to  correct  the  press  ;  and  all  this  in 
hurry  and  interruption  of  daily  professional  avocations,  can  best 
conceived  by  those  who  have  at  any  time  engaged  in  similar 
ours.  Some  typical  errors  and  other  slight  faults  in  transcribing 
1  be  found,  as  the  work  was  hurried  at  the  first  in  order  to  grati- 
(public  curiosity.  But  as  none  of  these  materially  alter  the  sense, 
f  intelligent  reader  will  easily  correct,  and  the  candid  excuse 
I  m.  The  publication  has  been  deferred  from  motives  that  have 
tg  since  ceased,  since  so  many  hasty  accounts  have  been  circula¬ 
te!,  that  justice  calls  for  the  publication  of  a  faithful  history  of  the 
§ole  of  the  important  proceedings.  To  render  the  work  more 
;ful  and  ready  of  reference,  an  index  of  the  principal  matters  is 
, joined,  and  a  table  of  contents  prefixed,  by  which  the  reader, 
cording  to  his  taste,  may  find  at  any  time,  that  which  he  wishes  to 
ect  or  refer  to.  And  a  plan  is  added,  that  those  who  are  stran- 
rs  to  our  city  mav  the  readier  understand  the  subject  of  so  many 
nute  but  essential  inquiries. 


CONTENTS 


Motion  to  bail  previous  to  the  trial, 

page 

on 

the  1  Sth  February, 

3 

M  r.  Price’s  opening, 

3 

Mr.  Mnnro,  (same  side) 

5 

Mr.  Blake  for  the  prosecution. 

9 

Mr  Griffin  for  the  prosecution. 

13 

Mr.  Wejls  for  the  prosecution. 

20 

Mr.  Munroin  reply, 

25 

Opinion  of  the  Court, 

28 

TRIAL —FIRST  DAY. 

’  I 

.March  14, 1820. 

Opening;  of  the  Court,  empannelling 
of  the  Jury,  challenges  to  the  polls, 
arguments  and  proceedings  there¬ 
on,  from  page  35  to  40 

Indictment,  41 

Opening  of  the  District  Attorney,  43 

TVitnesses  sworn  and  examined  for  the 
prosecution. 


Benjamin  Clark,  40.  104 

Maltbie  Weed,  49.  107 

Valentine  Mott,  M.  D.  52 

Cyrus  Perkins,  M.  D.  56 

William  Weir,  60 

William  G.  Haycock,  62 

Leonard  Baker,  63 

Alexander  J.  M‘ Williams,  64 

SECOND  DAY. 

r 

Thaddcus  Phelps,  66 

John  H.  Ball,  68 

Michael  M'Gowan,  69 

Charles  L.  H.  Schieffelin,  M.  D.  70.  104 
John  Nelson,  M.  D.  71 

Francis  Eloy  Berger,  73 

Mr.  Hoffman’s  opening,  Ibid 

Evidence  for  the  prisoner. 

Hosea  Mulder,  83.  100 

Col.  James  Warner,  (police  justice)  85 
Jacob  Hays,  (high  constable)  86 


THIRD  DAY. 

Witnesses  for  the  prosecution. 

Churchill  C.  Cambreleng, 

Wright  Post,  M.  D. 

Abraham  Vervalen, 

Major  Richard  Smith, 

William  L.  Rose,  (counsellor  at  law) 
James  W.  Lovet, 

Authorities  read  by  Air.  Griffin, 

FOURTH  DAY. 

Mr.  Ogden’s  summing  up  for  the 
prisoner, 

Mr.  Emmet’s  summing  up  for  the 
prisoner, 

Mr.  Griffin’s  summing  up  for  the 
prosecution, 

Mr.  Wells’  summing  up  for  the  pro¬ 
secution, 

Charge  of  his  honour  the  Mayor  to 
the  Jury, 

Points  of  his  legal  advice  to  the  Jury, 

FIFTH  DAY. 

Jurv  retire  at  a  quarter  past  one, 
A.  M. 

At  six  o’clock  P.  M.  same  day,  ver¬ 
dict  of  Guilty,  recommending  the 
prisoner  to  mercy,  but  disagreeing 
on  being  polled — again  sent  out  to 
consider  of  their  verdict. 

Jury  sent  for  by  the  Court,  at  half 
past  eleven  P.  M.  same  day,  (Sa-  ■ 
turday)  and  not  being  able  to 
agree,  are  finally  discharged,  I 

Motion  by  prisoner’s  counsel  to  bail 
instanter — Court  divided  and  mo¬ 
tion  lost, 

Motion  to  bail  before  his  honour  the 
Mayor,  on  Habeas  Corpus,  1 

Abstract  of  statutes  conferring  the 
powers  of  Judges  of  the  Supreme 
Court  on  inferior  magistrates, 
Opinion  of  Chief  Justice  Spencer, 
and  his  order  to  admit  the  prisoner 
to  bail,  1 

Errata,  I 


TRIAL,  &c. 

AT  A  COURT  OP  GENERAL  SESSIONS  OF  THE  PEACE 

Held  in  and  for  the  City  and  County  of  New- York,  on  the  1  Bti 
day  of  February,  1820  ; 

PRESENT, 

THE  HONOURABLE  CADWALLADER  D.  COLDEN, 

MAYOR  OF  THE  CITY  OF  SEW-Y01IK, 

ASA  MANN  AND  GEORGE  B.  THQRP, 

ALDERMEjr. 

THE  PEOPLE  vs.  ROBERT  M.  GOODWIN. 

On  Motion  in  behalf  of  the  Prisoner  to  be  admitted  to  Bail. 

Mr.  Stephen  Price  opened  the  motion  on  behalf  of  the  prisoner. 
He  said  he  rose  to  renew  the  application  for  bail,  made  on  an  early 
day  in  this  term. 

His  honour  the  Mayor  observed,  that  the  prisoner  was  not  be¬ 
fore  the  court,  and  that  he  considered  it  as  a  settled  principle;  that 
no  motion  respecting  a  prisoner  of  the  court  charged  with  a  felony 
could  be  made,  unless  in  his  presence. 

Mr.  Price  observed,  that  from  the  apparent  preparation,  and  the 
attendance  of  several  counsel  for  the  prosecution,  the  argument 
might  probably  be  long,  and  the  delay  inconvenient ;  but  that  he 
was  under  the  direction  of  the  court. 

The  Mayor  called  upon  Mr.  Munro,  also  of  counsel  lor  the 
prisoner,  who  admitted  the  propriety  of  sending  for  him  ;  and  an 
order  to  that  effect  being  made,  after  a  short  time  bestowed  in  the 
j  ordinary  business  of  the  court,  the  prisoner  was  brought  up,  ac¬ 
companied  by  his  brother,  captain  Ridgely,  and  stood,  during  the 
argument,  within  the  bar,  in  the  space  on  the  right  hand  of  the 
{  bench. 

Mr.  Price  then  proceeded  to  state  to  the  court,  that  the  prisoner 
was  on  the  7th  of  January  last,  indicted  for  manslaughter,  but  was 
not  called  upon  by  the  District  Attorney  to  take  his  trial  during 
that  term.  That  during  that  term,  an  application  was  made  that 
he  should  either  be  tried,  or  admitted  to  bail ;  and  he  was  told  by  the 
District  Attorney,  that  he  was  nc  ready  to  proceed  to  his  trial.  The 
present  application,  he  said,  was,  that  he  should  be  admitted  to 


4 


bail,  merely  and  solely  on  the  indictment,  which  was  on  the  files  of 
this  court,  and  of  which  this  court  had  full  jurisdiction. 

That  this  court  was  competent  to  try  its  prisoner,  for  the  offence 
of  manslaughter,  was  beyond  question.  The  only  statute  which 
speaks  of  the  offence,  calls  it  an  offence  above  the  degree  of  petit 
larceny,  and  in  this  very  term,  some  trials  have  taken  place  for  the 
same  offence,  and  some  of  the  parties  been  found  guilty,  and  others 
acquitted.  The  court,  then,  having  the  power  to  try,  and  to  discharge 
the  prisoner,  has  undoubtedly  the  power  to  make  all  intermediate 
orders.  The  District  Attorney  may  enter  a  nolle  prosequi,  and  pro¬ 
claim  the  discharge  of  any  prisoner  whom  the  court  is  competent 
to  try.  The  act  declaring  the  powers  of  the  Courts  of  General 
Sessions  of  the  Peace,  1  N.  R.  L.  K.  Y.  p.  151,  §  7,  enacts,  that 

the  said  Courts  of  General  Sessions  of  the  Peace  may,  in  their  dis¬ 
cretion,  let  to  bail,  prisoners  arrested  and  in  gaol,  in  their  respective 
cities  and  counties,  for  suspicion  of  felony',  to  appear  at  the  next 
court  having  cognizance  of  the  offence,  and  where  the  same  ought 
to  be  tried.” 

It  here  appears  then,  that  this  court  may  in  its  discretion  let  to 
bail.  The  prisoner  has  been  in  confinement  two  terms,  and  ready 
for  his  trial,  and  the  court  has  been  in  the  practice  of  bailing  in 
.such  cases.  In  the  case  of  Bovver  man  and  others,  which  must  be 
in  the  recollection  of  the  Mayor,  after  an  indictment  for  grand  lar¬ 
ceny  was  brought  in,  for  certain  goods  stolen  from  Mr.  Beach,  the 
District  Attorney  having  some  doubts,  took  the  opinion  of  the  court. 
1  thiuk  it  unnecessary,  therefore,  to  detain  the  court  with  any  fur¬ 
ther  argument,  as  to  their  power  to  bail. 

It  is  true,  that  in  this  case,  a  coroner’s  inquest  is  supposed  to 
interfere  ;  but  that  inquest  being  by  law  returnable  into  the  Court 
of  Oyer  and  Terminer,  and  not  here,  cannot  be  noticed  by  this 
court.  Nor  is  this  all  :  by  the  Constitution  of  the  United  States, 
(5th  article  of  the  amendments)  it  is  declared,  “  that  no  person 
shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentme  nt  or  indictment  of  a  Grand  Jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in 
actual  service,  in  time  of  war,  or  public  danger.” 

The  Mayor.  You  will  find  other  words  in  that  article  which  it 
may  be  material  to  consider. 

The  counsel  then  read  the  remainder  of  the  article  :  “  Nor  shall 
any  person  be  subject,  for  the  same  offence,  to  be  twice  pnf  in  jeo¬ 
pardy  of  life,  or  limb  ;  nor  shall  he  be  compelled  in  anv  criminal  case 
to  be  witness  against  himself ;  nor  be  deprived  of  life,  liberty  or 
property,  without  due  process  of  law.” 

Now,  that  a  coroner’s  inquest  is  neither  an  indictment,  nor  a 
presentment  of  a  Grand  Jury,  is  very  evident.  1  shall,  however, 
confirm  it,  by  two  most  respectable  authorities  : 

In  Bac.  ,1b.  title  Indictment,  an  indictment  is  defined  to  be  an  ac¬ 
cusation  at  the  suit  of  the  king,  by  the  oaths  of  twelve  men  at 
least,  and  not  more  than  twenty-three,  of  the  same  county  wherein 
iiie  offence  was  committed,  returned  to  inquire  of  all  offences  in 


5 


general  in  the  county,  determinable  by  the  court  in  which  they 
are  returned,  and  finding  a  bill  brought  before  them  to  be  true. 
But  when  such  accusation  is  found  by  a  Grand  Jury,  without  any 
bill  brought  before  them,  and  afterwards  reduced  to  a  formal  in¬ 
dictment,  it  is  called  a  presentment  ;  and  when  it  is  found  by  ju¬ 
rors,  returned  to  inquire  of  that  offence  only  which  is  indicted,  it 
is  called  an  inquisition.  And  the  compiler  cites  in  support  of  this 
definition,  2  Hale,  P.  C.  and  2  Burr.  ]0C8.* 

Mr.  Price  also  cited  1  Chilly's  Cr.  L.  162,  to  show  that  an  inqui¬ 
sition  could  not  be  termed  an  indictment  ;  and  to. show  the  distinc¬ 
tion  by  explaining  what  was  an  indictment,  and  what  an  inqui¬ 
sition,  and  read  as  follows  :  “  Ap  indictment  is  a  written  accusation 
of  one  or  more  persons,  of  a  crime  preferred  to,  and  presented  up¬ 
on  oath,  by  a  Grand  Jury,  returned  to  inquire  of  all  offences  in 
general  in  that  county.  It  is  the  most  constitutional,  regular,  and 
safe,  as  well  as  by  far  the  most  usual  mode  of  proceeding  upon 
criminal  charges.”  > 

Munro,  also  on  behalf  of  the  prisoner,  followed  Mr.  Price. 

I  make  this  application,  to  the  discretion  of  the  court,  to  bail  the 
prisoner,  upon  the  indictment  found  by  the  grand  jury,  for  man¬ 
slaughter.  On  the  7th  day  of  January  last,  he  was  committed  by 
the  Mayor  for  manslaughter.  On  the  26th  he  was  committed  by 
the  coroner  for  the  crime  of  wilful  murder.  And  1  confine  my 
application  to  that  particular  charge,  of  which  this  court  has  juris¬ 
diction  ;  and  that  only,  of  which  he  stands  indicted,  before  this  court, 
by  a  Grand  Jury.  I  move  that  he  be  admitted  to  hail,  or  put  upon 
his  trial,  as  the  public  prosecutor  shall  think  fit.  And  1  shall  divide 
my  argument  on  this  motion  into  these  two  inquiries  : 

1.  Has  this  court  the  power  to  hail  in  cases  of  manslaughter  ? 

2.  Is  it,  under  all  the  circumstances  of  this  case,  fit  and  proper 
to  exercise  that  power  ? 

If  either  of  these  be  decided  in  the  negative,  my  application 
must  fail. 

No  doubt,  I  think,  this  court  has  that  power.  The  statute,  as 
well  as  the  charter  of  the  city,  gives  it  jurisdiction.  And  when¬ 
ever  the  court  has.the  power  to  try,  commit,  and  discharge  a  de¬ 
fendant,  it  can  certainly,  by  the  common  law,  bail  the  party  ac- 


*  Tt  is  thus  reported  by  Sir  James  Burrows,  whoit  will  he  remembered  was  masterof 
the  crown  office,  that  in  Michaelmas  term,  1.  G.  3.  Jinno  Domini  1760  :  “  On  ti  e  Grand 
Jury  day,  it  was  intended  bv  the  sheriff’s,  and  pressed  by  the  knights  of  the  shire  for 
Middlesex,  that  all  the  principal  gentlemen  of  the  county  (not  fewer  than  fourscore 
in  number)  should  be  sworn  of  this  Grand  Jury,  in  order  to  their  being  included  in  an 
address  to  his  Majesty,  from  and  in  the  name  of  the  Grand  Jury  of  Middlesex,  upon 
his  accession  to  the  crown.  But  upon  the  sheriff’s  mention  of  this  tome,  it  seemed  to 
me  to  be  irregular  and  improper  to  swear  more  than  twenty-three  :  because,  if  a 
number  amounting  to  two  full  juries,  or  more,  should  be  sworn,  it  might  happen  that 
a  complete  jury  of  twelve  might  find  a  bill  to  be  a  true  one,  though  other  twelve  of 
the  very  same  jury  might  reject  it  as  an  untrue  one  ;  which  would  be  inconvenient 
as  well  as  contradictory',  and  even  somewhat  ridiculous. 

Lord  Mansfield  being  informed  of  this,  said  it  would  he  monstrous  to  swear  four¬ 
score  ;  and  that  the  officer  could  not  swear  more  than  three  and  twenty 

The  Reporter, 


(S 


cased.  For  whence,  unless  from  the  common  law,  did  it  acquire, 
in  any  case  whatever,  the  right  to  bail  ?  This  court  is  held,  under 
the  statute  concerning  the  Majors’  Courts  in  the  cities  of  Albany 
and  Hudson,  and  the  Mayor’s  Court  and  General  Sessions  of  the 
Peace  in  the  city  of  New-York,  2  AT.  R.  L.  503.  §  10.  The 
County  Sessions  wre  held  under  the  act  declaring  the  powers  of  the 
Courts  of  General  Sessions  of  the  Peace,  2  JV.  R.  L.  150.  The 
statute  then  that  regulates  the  County  Sessions,  does  not  apply  to 
this  court,  and  therefore  the  legislature  did  not  say  to  this  court  in 
so  many  words  as  it  did  to  the  others,  you  may  bail  if  you  think 
tit,  for  it  would  have  been  quite  unnecessary.  And  if  1  can  show 
that  inferior  courts  can  bail  not  only  for  this  but  for  higher  crimes, 
this  court  may  surely  do  so  if  it  thinks  tit.  The  superior  courts, 
such  as  the  King’s  Bench  in  England,  and  the  Supreme  Court  of 
this  state,  can  bail  in  all  cases — and  why  ?  Because  they  have  ju¬ 
risdiction  over  all  indictable  offences.  The  right  to  try  confers 
the  right  to  bail.  To  show  that  they  have  that  right,  and  do  exer¬ 
cise  it,  in  cases  of  high  treason,  murder,  manslaughter,  forgery, 
rapes,  libels,  and  all  felonies  and  offences  whatsoever,  the  counsel 
read  from  1  Chitty's  Cr.  L.  p.  80  of  the  American  edition.  This 
power  was  frequently  used,  he  said,  in  cases  of  manslaughter, 
and  he  particularly  referred  to  the  case  of  the  King  vs.  Alagrath , 
(2  Stra.  1212)  where  the  prisoner  was  committed  for  manslaughter, 
and  it  appearing  to  be  no  more  upon  the  depositions  before  the  co¬ 
roner,  the  court  admitted  him  to  bail,  according  to  Salk.  104. 
The  counsel  also  read  as  follows,  from  the  King  vs.  Dalton,  (2  Stra. 
B 11.) 

The  defendant  had  the  misfortune  to  kill  his  schoolfellow  at 
Eton.  And  being  brought  up  by  habeas  corpus  to  the  Chief  Jus¬ 
tice’s  house,  it  was  returned  that  he  was  committed  by  the  coroner 
for  manslaughter.  It  was  therefore  prayed  he  might  be  bailed. 
But  the  Chief  Justice  said  that  was  no  reason,  for  if  the  depositions 
made  it  murder,  he  would  not  bail :  e  contra,  if  they  amounted  only 
to  manslaughter,  he  would  bail,  though  the  coroner’s  inquest  had 
found  it  murder.  And  he  said  the  distinction  was  between  the 
coroner’s  inquest  where  the  court  can  look  into  the  depositions,  and 
an  indictment  where  the  evidence  is  secret.  That  Lord  Mohun’s 
case  in  Salk.  104,  was  in  point,  (though  that  was  at  Holt’s  chamber 
and  not  in  court)  as  the  book  reports  it,  and  that  the  lords  bailed 
him  after  an  indictment  for  murder  was  found.  He  said  that 
himself  refused  to  bail  Mr.  Clifton,  because  he  thought  the  de¬ 
positions  made  it  murder,  though  the  inquest  was  manslaughter  only. 
The  bail  was  four  in  £4000,  and  the  Chief  Justice  said  it  was 
usual  to  take  them  in  a  sum,  or  body  for  body :  and  w  hen  they  are 
taken  corpus  pro  corpnre,  it  was  a  mistake  to  imagine  the  bail  were 
to  be  hanged  if  the  principal  ran  away  :  but  that  the  method  was 
to  amerce  them. 

The  counsel  then  referred  to  Lord  Mohun’s  case,  (1  Salk.  104,) 
which  is  thus  :  “  If  a  man  be  found  guilty  of  murder  by  the  coroner’s 
inquest,  we  sometimes  hail  him,  because  the  coroner  proceeds  upon 


7 


depositions  which  we  may  look  into  :  otherwise  if  a  man  be  found 
guilty  of  murder  by  a  Grand  Jury  :  because  the  court  cannot  take 
notice  of  their  evidence,  which  they  are  bound  by  their  oath  to  con¬ 
ceal,”  &c.  The  counsel  then  proceeded  : 

I  admit  this  bail  is  not  de  jure,  but  that  we  are  applying  to  the 
favour  of  the  court,  which  will  bail  or  not  as  it  thinks  fit,  under  all 
the  circumstances  ;  and,  therefore,  having  first  shown  that  it  has  the 
power  to  bail,  the  next  point  is,  whether,  having  this  power, 
it  will  exercise  it  in  this  particular  case. 

We  do  not  seek  to  disturb  the  finding  for  murder  ;  to  that  the 
prisoner  is  bound  to  answer  before  the  Court  of  Oyer  and  Terminer. 
We  wish  only  to  be  set  at  liberty  from  this  charge,  that  we  may  not 
be  embarrassed  with  it  when  we  apply  to  the  superior  court  to  bail 
as  upon  habeas  corpus  for  the  charge  of  murder.  The  prisoner 
has  been  already  confined  in  close  custody  two  terms,  during  which 
the  public  prosecutor  might  have  tried  him  if  he  would.  The  Oyer 
and  Terminer  will  not  be  till  the  month  of  April,  and  why  should 
he  be  detained  till  then  upon,  this  charge  ?  His  appearance  there 
will  be  secured  and  enforced  :  first,  by  the  bail  given  here,  and 
secondly,  upon  that  given  upon  the  lrnbeas  corpus,  if  he  should  suc¬ 
ceed  in  that  application;  and  if  he  should  fail,  by  his  remaining  a 
prisoner.  As  to  the  offence  of  which  this  court  has  cognizance,  the 
punishment  is  not  greater  in  case  of  a  conviction  than  that  inflicted 
in  many  cases  of  misdemeanor;  for  punishment  in  the  state  prison  is 
no  necessary  part  of  the  sentence.  If  the  court  see  fit,  they  may 
make  it  simply  fine  and  imprisonment. 

I  know  not  yet  what  arguments  will  be  urged  in  opposition  to 
this  motion  ;  a  case  has  been  just  put  into  my  hands,  the  report  of 
Mr.  Selfridge’s  trial,  ( p .  8.)  where  it  is  said  that  the  prisoner 
was  recognized  de  die  in  diem.  So  it  appears  that  in  a  case  of 
great  importance,  and  which  excited  such  strong  feelings,  the  court 
nevertheless  did  bail  the  prisoner. 

The  Mayor  here  took  occasion  to  observe,  touching  the  punish¬ 
ment  of  this  offence,  that  it  was  only  to  be  found  in  the  5th  section  of 
the  act  declaring  the  punishment  of  crimes ;  where  it  is  enacted  that 
persons  convicted  or  attainted  ot  burning  an  uninhabited  dwelling 
house,  or  house  of  worship,  or  barn,  or  gristmill,  or  of  any  offence 
specified  in  the  first  section  of  the  act  to  prevent  forgery,  the  pu¬ 
nishment  whereof  is  not  provided  for  in  the  last  preceding  section, 
or  of  any  felony  other  than  such  as  are  herein  above  enumerated, 
and  directed  to  be  otherwise  punished,  and  above  the  degree  of 
petit  larceny,  &c.  &c.  shall  be  adjudged,  on  a  consideration  of  all  the 
circumstances,  to  imprisonment  in  the  state  prison  for  any  term  not 
more  than  fourteen  years.  (1  R.  L.  N.  Y.  409.)  By  that  section  all 
felonies  not  enumerated  in  the  statutes  or  sections  there  specified, 
and  which  are  above  the  degree  of  petit  larceny,  are  punishable  by 
imprisonment  in  the  state  prison  ;  for,  by  the  14th  section  of  the 
same  act,  we  cannot  imprison  in  the  state  prison  for  less  than  three 
years  :  so  that  unless  we  punish  him  for  three  years  sn  the  state 
prison  we  cannot  pu»ish  him  at  all. 


8 


Mr.  Alunro  acknowledging  this  to  be  so,  proceeded  :  If  it  be  said 
that  he  stands  indicted  for  murder,  and  that  the  coroner  has  certi¬ 
fied  the  finding  into  this  court.  1  answer,  he  has  done  w  hat  lie  ought 
not  to  have  done.  It  was  made  his  duty  by  the  first  section  of  the 
act  concerning  coroners,  (1  jV.  R.  L.  jX.  Y.  150.)  to  return  his  in¬ 
quisition  to  the  Over  and  Terminer.  This  court,  therefore,  cannot 
take  judicial  notice  of  that  inquisition.  If  it  could,  it  couid  go  fu*  tlier, 
and  examine  whether  it  was  such  an  inquisition  as  the  prisoner 
could  be  tried  upon.  And,  though,  in  England,  it  may  be  so,  and  it 
may  have  been  done  in  one  or  two  instances  in  this  state,  yet,  pro- 
babl}',  this  is  the  first  time  it  has  been  questioned  or  examined.  It 
is  not,  truly  speaking,  either  a  presentment  or  an  indictment ;  and, 
I  have  found  but  one  single  book  where  a  coroner’s  jury  is  called 
a  grand  jury.  In  Dallun's  Sheriff  they  are  called  grand  juries 
or  not,  according  to  the  number  of  which  they  consist :  if  of  twelve, 
it  is  called  a  petit  jury,  if  of  more,  a  grand  jury.  The  jury,  in  a 
Grand  Assize,  is  called  a  grand  jury.  So  under  the  statute  of  forci¬ 
ble  entry,  or  to  abate  a  nuisance.  And  1  have  doubted  whether  the 
legislature  did  not  meatvto  exclude  a  finding  or  inquisition  of  office, 
for  all  the  other  books  make  a  clear  distinction  between  them. 

Blackstone  (4  Com.  301-2.)  says,  “  A  presentment,  generally 
taken,  is  a  very  comprehensive  term  :  including  not  only  present¬ 
ments,  properly  so  called,  but  also  inquisitions  of  office,  and  indict¬ 
ments  by  a  grand  jury.  A  presentment,  properly  speaking,  is  the 
notice  taken  by  a  grand  jury  of  any  offence  from  their  own  know¬ 
ledge  or  observation,  without  any  bill  of  indictment  1  fid  before  them 
at  the  suit  of  the  king  :  as  the  presentment  of  a  nuisance,  a  libel,  or 
the  like,  upon  which  the  officer  of  the  court  must  afterw  ards  frame 
an  indictment,  before  the  party  presented  can  be  put  to  answer  it. 
An  inquisition  of  office  is,  the  act  of  a  jury  summoned  by  the  proper 
officer,  to  inquire  of  matters  relating  to  the  crown,  upon  evidence 
laid  before  them.  Some  of  these  are  in  themselves  convictions,  and 
cannot  afterwards  be  traversed  or  denied,  and  therefore  the  inquest 
or  jury  ought  to  hear  all  that  can  be  alleged  on  both  sides.  Of  this 
nature  are  all  inquisitions  felo  tie  se ;  of  flight  of  persons  accused  of 
felony  ;  of  deodands,  and  the  like.  Other  inquisitions  may  be  after¬ 
wards  traversed  and  examined,  as  particularly  the  coroner’s  inqui¬ 
sition  of  the  death  of  a  man,  when  it  finds  any  one  guilty  of  homi¬ 
cide  :  for,  in  such  cases,  the  offender  so  presented  must  be  arraign¬ 
ed  upon  this  inquisition,  and  may  dispute  the  truth  of  it  ;  which 
brings  it  to  a  kind  of  indictment,  the.  most  usual  and  effectual  means 
of  prosecution,  and  into  which  we  will  therefore  inquire  a  little 
more  minutely. 

“  An  indictment  is  a  written  accusation  of  one  or  more  persons, 
of  a  crime  or  misdemeanor  preferred  to  and  presented  on  oath  by  a 
grand  jury.  To  this  end,  the  sheriff  of  every  county  is  bound  to 
return  to  every  session  of  the  peace,  and  every  commission  of 
Oyer  and  Terminer ,  and  of  every  goal  delivery,  twenty-four  good 
and  lawful  men  of  the  county,  soma  out  of  everv  hundred,  to  in¬ 
quire.  present,  do,  and  execute  all  those  things  which,  on  the  part 


of  our  lord  the  king  shall  then  and  there  be  commanded  them. 
They  ought  to  be  freeholders,  but  to  what  amount  is  uncertain  : 
which  seems  to  be  casus  omissus,  and  as  proper  to  be  regulated  by 
the  legislature  as  the  qualification  of  the  petit  jury  ;  which  were 
formerly  vague  and  uncertain,  but  are  now  settled  by  several  acts 
of  parliament.” 

The  common  law  then  (for  it  is  that  the  author  here  lays  down) 
defines  an  indictment  to  be  the  finding  of  a  grand  jury,  found  by 
freeholders,  though  the  amount  of  their  freehold  is  not  specified. 
Our  statute  only  says  that  the  coroner  must  inquire  by  good  and 
lawful  men.  Whether  this  has  been  so  done  in  this  case  does  not 
appear.  A  coroner's  inquest  is  an  inquest  of  office,  signed  by  the 
coroner  and  taken  under  trie  direction  of  the  coroner.  An  indict¬ 
ment  is  the  finding  of  a  grand  jury  under  the  guidance  and  direction 
of  a  court,  with  the  assistance  of  the  knowledge  of  the  public  pro¬ 
secutor,  and  the  aid  of  the  learning  and  wisdom  of  the  judges  to 
guide  and  direct  them.  The  officer  in  this  instance  is  not  a  lawyer, 
for  even  with  the  statute  before  his  eyes,  he  certifies  his  inquisition 
into  this  court,  instead  of  that  into  which  the  constitution  requires 
that  he  should  certify  it.  When  this  constitution  was  framed  it  was 
with  great  care.  Various  amendments  were  proposed,  amongst  which 
this  one  was  adopted  :  ( article  5,  Amend.)  rI  hat  no  person  should 
be  put  to  answer  for  a  capital  or  otherwise  infamous  crime,  unless 
upon  a  presentment  or  indictment  of  a  grand  jury.”  And  if  there 
be  any  doubt  whether  this  coroner’s  inquisition  be  an  indictment 
by  a  grand  jury,  it  ought  to  be  construed  in  favour  of  liberty  and 
in  the  spirit  of  mercy.  If  this  be  a  privilege  intended  for  every 
citizen  and  for  every  person  accused,  let  it  not  be  infringed.  Let  us 
not  undermine  the  ground  upon  which  we  stand,  when  little  good 
can  accrue  to  the  public,  but  great  evil  to  the  individual. 

Blake,  for  the  Prosecution.  From  the  various  forms  this  applica¬ 
tion  has  assumed  from  the  beginning,  I  shall,  instead  of  answering 
every  thing  that  has  been  said,  simply  present  to  the  court  the  view 
1  have,  upon  deliberation  and  mature  consideration,  formed  ;  and, 
however  acute  my  feelings  may  be,  1  shall  treat  the  subject  with 
the  calmness  and  moderation  which  a  legal  investigation  requires. 

The  application  is  to  bail  Mr.  Robert  M.  Goodwin,  who  stands 
here  indicted  for  manslaughter,  and  against  whom  there  is  also  an 
inquisition  for  murder,  signed  by  twenty-four  men,  in  conjunc¬ 
tion  with  the  coroner  himself ;  which,  if  it  be  not  so  in  the  strict¬ 
ness  of  the  term,  is  at  all  events  equivalent  to  an  indictment  by  a 
grand  jury  ;  being  that  upon  which  the  attorney-general  may 
prose<^ite  the  defendant  before  any  court  having  competent  juris¬ 
diction. 

I  shall  range  my  argument  under  these  two  propositions,  of  which 
I  shall  endeavour  to  support  the  truth  by  reason  and  authority. 

1.  By  the  laws  of  England,  as  well  as  those  of  this  country,  an- 
inquisition  for  murder  by  the  coroner  is  equivalent  to  an  indict¬ 
ment  by  a  grand  jury. 

2.  That  a  party  charged  with  two  offences  of  different  degree, 

2 


10 


oanuot  be  bailed  for  the  minor  offence,  neither  by  the  common  law, 
nor  by  any  statute  of  tiiis  state. 

By  the  common  law,  no  prisoner  is  entitled  to  be  bailed  unless 
there  has  been  a  delay  of  justice,  and  this  is  the  tirst  session  in 
which  he  has  ever  offered  himself  for  trial.  It  is  so  iu  England,  and 
it  is  the  same  by  due  construction  of  our  laws  and  constitution.  Tor 
1  lake  this  to  be  an  unquestionable  truth,  that  we  have  adopted 
every  part  of  the  common  law  of  England  that  is  not  n  pugnunt 
to  our  usages,  and  where  neither  our  constitution  nor  any  of  our 
statutes  has  made  an  alteration  ;  or,  in  other  words,  that  the  com¬ 
mon  law  is  the  law  of  our  land,  unless  where  it  may  be  contrary  to 
our  constitution  or  our  statutes. 

1  also  hold  every  state  in  our  Union  to  be  a  distinct  and  separate 
sovereignty  ;  and,  being  so,  that  every  offence  against  tbe  laws  and 
peace  of  a  state  must  be  tried  by  the  tribunals  of  that  state,  nor  can 
any  thing  in  the  constitution  of  tbe  United  States  be  supposed  to  for¬ 
bid  it.  This  state  tins  adopted  the  common  law,  and  has  retained  its 
municipal  code  in  every  particular,  except  those  where  it  has  made 
a  precise  specitic  delegation  of  some  part  of  it.  And  it  cannot  be 
shown  that  the  trial  or  punishment  of  any  offences  other  than  those 
against  the  United  States  and  their  laws,  can  be  tried  or  legislated 
upon  under  the  constitution  or  laws  of  the  United  States.  1  shall, 
therefore,  apply  the  common  law  and  the  laws  and  constitution  of 
this  state  to  the  case  in  hand,  and  not  the  law  or  the  constitution  of 
the  United  States,  which  have  no  lelerence  to  it.  And  Lord  Hale 
has  laid  it  down  (2  Hale ,  PI.  222.)  as  a  rule  to  be  observed,  that 
where  there  is  an  inouest  for  murder,  and  an  indictment  tor  man- 
slaughter,  it  is  usu.d  to  arraign  him  lirst  for  the  greater  and  not  the 
minor  offence. 

And  why  should  not  this  be  tbe  law  of  this  state  ?  The  constitu¬ 
tion  secures  all  the  priv  ileges  of  trial  by  jury,  as  amply  as  the  Mag¬ 
na  Ckarta  of  England.  And  the  laws  of  this  st.ite,  that  right  being 
already  secured,  are  silent  upon  the  subject.  Tbe  framers  of  tbe 
constitution  of  the  United  States  had  to  provide  for  the  organization 
of  the  powers  delegated  to  the  general  government  for  national 
purposes.  They  had  no  powers  but  what  were  delegated  to  them, 
nor  could  there  be  any  laws  but  such  as  were  made  in  pursuance 
of  those  delegated  powers.  It  was  found  that  the  constitution  had 
not  provided  ior  the  triai  by'  jury,  which  every  one  of  the  sever. il 
states  iiad  previously  derived  and  adopted  from  the  common  law. 
It  was  to  assimilate  the  jurisprudence  of  the  United  States,  to  that 
of  the  individual  states,  in  this  important  feature,  that  the  amend¬ 
ment  referred  to  was  made. 

The  gentlemen  had  said,  it  was  to  give  the  trial  by  jury  to  the  in¬ 
dividual  states.  Had  they  not  it  before  ?  Yes;  but  the  United  Slates 
had  it  not  before.  They  could  have  it  only  from  the  constitution. 
The  constitution  had  not  established  it.  This  omission  being  observ- 
(  I,  the  constitution  was  amended  in  order  to  supply  the  delect. 
The  individual  states  never  intended  to  give  away  their  sovereign¬ 
ty,  nor  any  part  of  it  beyond  what  was  necessary  for  national 


11 


and  general  purposes  ;  and  least  of  all,  the  power  of  saying  whe¬ 
ther  they  should  or  should  not  enjoy  the  right  of  trial  by  jury. 
And  a  principal  reason  for  the  adoption  of  this  amendment  was,  to 
prevent  the  use  of  inquisitions  of  office,  which  had  been  so  much 
complained  of  and  so  odious.  It  was,  therefore,  to  fill  up  this  chasm, 
and  to  give  the  code  of  the  United  States  the  same  advantage  as  that 
of  the  several  states  always  possessed,  that  it  was  adopted. 

These  arguments  then,  derived  from  the  amendment  of  the  con¬ 
stitution  of  the  United  States,  being  refuted,  we  return  to  the  ficts 
in  the  cause.  Here  are  two  verdicts  against  the  prisoner  for  the 
same  homicide,  which  no  authority  save  the  attorney-general  of 
the  state  is  competent  to  sever  ;  nor  is  it  competent  to  this  cour  t  to 
bail  upon  that  for  felonious  homicide,  whilst  the  other  for  wilful 
murder  subsists  in  full  force.  When  it  is  laid  down  so  clearly  by 
such  an  authority  as  Hale,  that  it  is  not  competent  for  any  court  to 
bail  for  the  minor  olfence,  nor  put  the  party  on  his  trial  for  it,  till 
the  greater  is  disposed  of,  will  this  court  take  such  responsibility 
upon  itself? 

As  to  the  complaint  of  delay.  The  habeas  corpus  act  has  given 
to  every  prisoner  in  custody,  upon  a  charge  of  treason  or  felony, 
a  mode  of  redress,  if  he  chooses  to  resort  to  it;  w  hich  is,  to  pe¬ 
tition  the  first  w'eek  of  the  term,  or  the  first  day  of  the  sessions  of 
Oy  er  and  Terminer  or  goal  delivery,  to  he  tried  ;  and.  then  if  not  in- 
di  ted  in  that  term  or  session,  to  he  hailed  ;  and  if  not  indicted  and 
tried  the  ensuing  term  or  session,  to  he  discharged. 

Now  there  has  been  no  session  of  Oyer  and  Terminer,  of  course 
no  petition  on  his  part,  nor  delay  on  that  of  the  prosecutor.  And 
in  this  court  the  prisoner  has  presented  no  petition.  And  in  no 
case  of  felony,  after  indictment  found,  is  the  party  entitled  to  bail, 
unless  justice  has  been  delayed. 

The  counsel  then  read  from  the  statute  above  quoted,  touching 
the  duty  of  the  coroner,  ( 1  R.  L.  160.)  to  show  that  when  the  inqui¬ 
sition  was  returned  into  the  Oyer  and  Terminer,  the  court  were 
bound  to  proceed  “  thereon .”  Whereon  ?  Why  upon  the  inquisi¬ 
tion,  the  only  thing  spoken  of.  Upon  the  charge  contained  in  that 
finding.  This  confirms  what  I  say  of  the  meaning  of  the  amend¬ 
ment  to  the  U.  S.  Constitution,  and  satisfies  the  words  of  it,  how¬ 
ever  interpreted  :  since  an  inquisition  is,  to  all  intents  and  purposes, 
an  indictment  in  every  thing  but  the  name.  If  it  were  not  so,  the 
law  would  have  been  otherwise  expressed,  and  it  would  have  said 
that  the  inquisition  should  he  filed  not  to  be  proceeded  upon,  but 
that  an  indictment  might  he  found  and  proceeded  upon. 

There  have  been  cases,  it  seems,  of  prisoners  being  bailed 
after  indictment  and  inquisition  found  ;  but  from  the  days  of  Alfred 
through  all  the  reigns  of  Hcnrys ,  Edzvards,  and  the  rest,  has  there 
been  one  solitary  instance  of  any  one  like  this  where  it  was  even 
asked  ? 

In  the  two  cases  cited  from  Strange,  and  one  from  Salkield ,  the 
judges  have  said  they  would  look  into  the  depositions  upon  the  co¬ 
roner’s  inquest,  and  if  they  amounted  to  manslaughter,  they  would 


12 


bail  ;  if  to  murder,  they  would  not.  And  that  though Ihev  could  not 
look  into  the  evidence  on  an  indictment,  the  jurors  being  sworn  to 
secresy,  they  could  upon  the  inquisition,  and  would  do  so,  and  regu¬ 
late  their  discretion  thereby.  When  they  bailed  upon  the  coro¬ 
ner’s  inquest,  then  upon  what'ground  was  it?  Because  upon  that 
evidence  the  charge  was  light  and  venial.  Will  it  be  found  so 
here  ? 

In  Lord  Mohun's  case,  the  Chief  Justice  says  he  never  will  bail 
where  there  has  been  a  finding  for  murder.  And  certainly  it  has 
beeu  done  in  no  case  but  where  there  has  been  preponderating  cir¬ 
cumstance*  to  raise  a  strong  presumption  of  innocence. 

The  .Mayor  here  adverted  to  a  case  where  this  court  did  bail  after 
an  indictment  for  felony.  There  the  prisoi  ers  were  brought  into 
court  by  their  bail  and  delivered  up  by  them  ;  or  as  it  would  be 
termed  in  a  civil  case,  surrendered,  that  is,  brought  in  by  their  bail 
in  discharge  of  their  recognizance.  Two  persons  were  bailed  be¬ 
cause  the  magistrates  had  thought  it  a  tit  case  for  bail,  and  the  court 
did  not  think  proper  to  interfere  :  but  there  is  no  case  where  a 
party  has  been  fully  committed  for  a  felony,  that  he  has  been  bailed 
as  of  course,  though  there  have  been  many  applications  to  this 
court.  I  have  always  said  that  it  was  not  of  course,  but  at  the  same 
time,  that  the  court  have  not  the  power  to  bail,  is  a  position  that  I 
deny. 

Trice.  In  the  case  cited  of  Bowerhan  and  Fitzgerald ,  the  court 
thought  proper  to  order  one  of  the  defendants  to  be  bailed  and  the 
other  two  to  be  committed. 

The  Mayor.  Those  two  persons  were  merely  continued  over 
upon  bail,  which  vva*  nothing  more  than  not  undoing  what  the  ma¬ 
gistrates  had  done,  we  conceiving  that  they  had  exercised  a  just  dis¬ 
cretion. 

Price.  Still  it  serves  to  show  that  the  court  will  bail  after  an  in¬ 
dictment  found. 

Blake.  There  may  and  must  have  been  a  great  many  cases  in 
criminal  law,  where  there  has  been  little  consideration.  And  such, 
perhaps,  was  this,  where  the  court  did  not  so  much  exercise  its  own 
judgment  as  acquiesce  in  what  had  been  done,  being  not  inclined  to 
undo  what  the  magistrates  had  done.  But  I  still  maintain  that  there 
has  been  no  case  where  there  was  a  finding  by  a  coroner  of  wilful 
murder,  and  the  court  have  bailed  without  looking  into  the  depo¬ 
sitions  upon  which  it  was  found.  And  if  the  court  has  looked  into 
these,  what  has  it  seen  ?  Was  there  not  premeditated  malice  ?  Was 
there  not  a  letter  from  the  prisoner,  when  in  gaol,  fraught  with 
vengeance  ?  Was  there  not  a  challenge  afterwards  to  fight  a  duel, 
which  the  law',  in  case  of  death,  has  pronounced  to  be  a  murder? 
Was  there  not  an  exchange  of  canes,  and  was  not  the  deadly  weapon 
received  in  this  exchange  the  same  that  was  driven  through  the 
heart  of  the  deceased  ?  Was  there  not  a  parading  in  Broadway 
in  order  to  waylay  him  ?  Was  there  not  an  assault  in  open  day  and 
in  the  public  street,  with  an  upraised  weapon  and  provoking  words  ? 
And  when  the  deed  was  perpetrated,  did  not  the  slayer  fly  1 


13 


Mr.  Price  here  interposed,  and  appealed  to  the  court  whether 
these  topi  -s  were  relevant  to  the  motion,  and  whether  the  counsel 
should  be  permitted  to  inflame  the  minds  of  the  by-standers  by 
assertions  that  were  not  warranted  by  any  thing  at  present  before 
the  court. 

Mayor.  Whenever  the  question  comes  to  be  considered  whether 
the  merits  are  such  as  to  influence  the  discretion- of  the  court,  it 
may  be  right  to  examine  into  the  merits.  We  will  first  decide  the 
preliminary  point,  whether  by  law,  without  entering  into  these  par¬ 
ticulars,  the  prisoner  may  be  bailed,  or  whether  he  cannot. 

Blake.  This  honourable  court  will,  I  trust,  at  all  events,  before 
it  will  decide  to  bail,  look  into  the  record. 

The  Mayor.  Supposing  the  court  should  decide  that  it  can  bail, 
then  it  will  depend  upon  the  merits  whether  we  shall  think  it  tit  in 
this  case  to  exercise  that  power  :  but  we  must  first  know  whether 
the  coroner’s  inquest  is  so  far  before  us  that  we  can  look  into  it. 

Mr.  Blake  proceeded  no  farther,  and  Mr.  Munro  begged  leave, 
before  the  other  counsel  for  the  prosecution  went  on,  to  submit  to 
the  court  the  concluding  phrase  of  the  sixth  section  of  the  “  act  to 
prevent  unjust  imprisonment,  by  securing  the  benefit  of  the  writ  of 
habeas  corpus ,”  which  is  in  these  words  :  And  if  any  person  in¬ 
dicted  as  aforesaid  shall  not  be  brought  to  trial  at  the  second  term 
of  the  sessions,  or  first  court  of  Oyer  and  Terminer  after  his  com¬ 
mitment,  he  shall  be  discharged  as  far  as  relates  to  any  treason  or 
felony  for  which  he  was  committed  as  aforesaid,  unless  satisfactory 
cause  be  shown  by  the  public  prosecutor  for  not  bringing  him  to 
trial.”  (1  R.  L.  N.  Y.  p.  356.)  Saying  nothing  of  presenting  a  pe¬ 
tition. 

Griffin,  for  the  Prosecution.  It  has  been  correctly  decided,  that 
in  felonies  above  the  degree  of  petit  larceny,  the  accused  person 
has  not  the  right  to  be  admitted  to  bail  de  jure.  The  ordinary,  the 
natural  course  is,  not  to  bail  when  the  party  is  committed  for  trea¬ 
son  or  for  felony.  Not  only  it  is  not  matter  of  right,  but  the  na¬ 
tural  course  is  not  to  bail  the  prisoner,  which  is  manifest  from  the 
habeas  corpus  act  itself,  which  goes  as  far  as  any  other  act  in  favour 
of  the  liberty  of  the  citizen.  All  persons  committed  for  treason  or 
felony  plainly  set  forth,  are  not  however  within  that  pale  of 
the  subject  or  the  citizen.  That  statute  gives  the  right  to  the 
prisoner  so  committed,  when  there  has  been  a  delay  of  justice,  and 
he  has  followed  the  course  specifically  pointed  out.  The  onus  al¬ 
ways  lies  upon  the  applicant,  who  must  show  some  strong  and  cogent 
reasons  why  one  so  accused  and  charged  should  not  answer  in  per¬ 
son  the  penalties  of  violated  law.  The  history  of  bail  is  this  : 
In  the  barbarous  times  of  the  12th  and  13th  centuries,  all  persons 
were  admitted  to  bail,  and  the  consequences  were  enormous  ;  and 
nothmg  could  better  prove  the  viciousness  of  that  principle,  than 
the  disorder  of  those  times,  till  the  I.  Edward  put  an  end  to  such 
licentiou-  impunity.  In  the  year  1275,  the  statute  3  Edw.  I.  c.  15, 
called  the  statute  of  Westminster  1.  was  made,  and  soon  after 
followed  by  the  statute  6  Edw.  I.  c.  9.  By  these  statutes,  the 


power  of  bailing  in  treason  or  felony  is  taken  away,  except  in  one 
class  of  cases  ;  that  is,  where  there  is  a  reasonable  presumption  of 
innocence.  But  where  there  is  a  presumption  of  guilt,  the  power  of 
bailing  is  not  legally  in  any  court,  either  in  England  or  this  country. 
It  in  such  cases  courts  will  venture  to  unlock  the  prison  doors,  and 
send  torth  the  criminal  to  prowl  upon  the  community,  and  perpe¬ 
trate  new  crimes  against  society,  they  do  that  which,  reasonably 
speaking,  they  cannot  do.  They  do  it  because  they  have  the  phy¬ 
sical  power  merely. 

Hawkins  says,  (PL  Cr.  b.  2.  c.  15.  §.  39  &  40.)  that  bail  is  only 
proper,  where  it  stands  indifferent  whether  the  party  be  guilty  or 
innocent  of  the  accusation  against  him,  which  it  often  does  before 
trial  ;  but  when  that  indifference  is  removed,  it  would  be  absurd  to 
bail  him.  And  the  53d  section  of  the  same  chapter  is  to  the  like 
effect.  And  in  cases  of  homicide,  if  the  prisoner  is  clearly  the 
slayer,  and  not  merely  suspected  to  be  so,  this  is  said  not  to  be 
bailable,  although  it  appear  to  the  justice  that  the  killing  was  in 
self-defence  ;  though  the  latter  position  seems  questionable.  (1  Cliit- 
ty  Cr.  L.  95.)  And  in p.  96  it  is  said,  persons  guilty  of  affrays  may 
be  bailed  or  uot,  at  the  discretion  of  the  magistrate  ;  but  he  ought 
to  be  very  cautious  how  he  takes  bail,  if  a  wound  is  given  from 
which  death  may  probably  ensue.  And  in  p.  99  this  author  again 
says,  after  recapitulating  the  plenary  powers  of  the  justices  of  the 
King’s  Bench,  that  it  is  not  usual  for  that  court  to  bail  in  cases 
of  felony,  unless  when,  in  consequence  of  the  defect  of  the  com¬ 
mitment,  and  of  the  examination  and  depositions,  it  appears  doubt¬ 
ful  whether  any  offence  has  been  committed. 

And  though  the  statutes  do  not  nominally  reach  the*judges  of  the 
superior  courts  of  Westminster- Hall,  nor  those  of  the  superior 
courts  of  our  own  country  ;  yet,  though  not  expressly  named,  they 
take  those  statutes  as  their  rule.  (Hawk.  PI.  Cr.  b.  2.  c.  15.  §.  79. 
1  Chitty  Cr.  L.  96.)  And  accordingly,  in  the  use  of  their  discretiona¬ 
ry  power,  they  bail  when  the  statutes  give  the  right  to  bail,  and 
refuse  when  they  prohibit;  for  they  were  not  intended  so  much  to 
abridge  the  power  of  justices  and  sheriffs,  as  to  fix  the  principles 
of  criminal  law.  And  the  principle  stated  by  Black  stone  (4  Coj/i.  298) 
is  unanswerable  :  that  the  law  visits  the  person,  and  not  the  purse 
of  traitors  or  felons.  And  that  offenders  shall  not  substitute  their 
money  for  their  persons,  when  they'  have  rendered  their  persons 
responsible  by  their  crimes.  The  majesty  of  the  law  is  insulted  in 
such  cases  by  the  offer  of  money  ;  and  although  the  statutes  may 
only  speak  of  justices  and  sheriffs,  and  the  superior  magistrates  mayr 
have  a  higher  discretion,  yet  certainly  they  will  never  feel  them¬ 
selves  less  interested,  or  think  themselves  less  bound  to  vindicate 
the  law. 

And  what  a  principle  it  would  he  to  establish,  that  the  poor  man 
should  be  taken,  committed,  tried,  convicted,  sentenced  and  punish¬ 
ed,  whilst  the  wealthy  culprit  has  only  to  calculate  how  much  it 
will  cost  him  to  gratify  the  worst  passions  of  his  nature  !  But  1  for¬ 
bear  for  the  present  making  any  application  of  these  principles.  It 


15 


may  be  we  shall  be  obliged  to  go  into  the  merits  of  Ibis  particular 
case  in  the  course  of  this  proceeding  ;  for  the  present  I  refrain. 

The  King’s  Bench,  it  will  appear  by  the  reports,  has  uniformly 
refused  bail  in  all  such  cases  ;  unless  where  some  extraordinary 
circumstances  have  given  them  cause  to  believe  the  prisoner  was 
not  guilty. 

In  a  case  where  the  prisoner  stood  committed  for  stealing,  or  re¬ 
ceiving. stolen  goods,  which  was  by  statute  made  punishable  with 
transportation  for  14  years,  where  the  law  was  not  altogether  free 
from  doubts  whether  his  offence  was  felony,  yet  bail  was  refused 
by  the  King’s  Bench.  (King  against  Wyer,  2  D.  &  E.  77.)  The  of¬ 
fence  in  its  worst  aspect  was  not  as  grave  as  this  manslaughter. 

And  in  a  case  of  still  lighter  character,  where  the  principles  were 
more  developed,  and  better  defined,  the  case  of  the  King  against 
Marks  and  others,  (3  East,  157.)  certain  journeymen  clothiers 
were  charged  with  administering  oaths,  not  specifying  the  offence. 
But  the  depositions  which  were  returned  into  the  King’s  Bench, 
with  the  writ  of  habeas  corpus,  stated  the  offence  very  fully,  which 
was  not  to  divulge  the  secrets  of  an  association,  or  committee,  of  a 
combination  to  raise  wages.  The  prisoners  were  not  committed 
for  felony.  There  was  much  debate  whether  the  charge  amount¬ 
ed  to  felony,  or  was  within  the  act  of  parliament  at  all,  which  made 
it  an  offence.  The  judges  themselves  doubted,  and  yet  they  re¬ 
manded  the  prisoner,  because  they  saw  no  reason  to  doubt  the  truth 
of  the  facts  ;  and  being  committed  for  what  might  be  a  felony, 
and  no  presumption  that  they  had  not  done  the  acts  charged,  there 
was  not  that  presumption  of  innocence  which  could  induce  the 
court  to  bail  them. 

I  have  so  tar  endeavoured  to  establish  two  propositions  : 

1st.  That  the  British  statutes  which  marked  the  transition  from 
anarchy  and  terror,  to  justice  and  good  order,  are  of  the  essence 
of  our  code.  That  the  regulations  which  took  from  the  rich  the 
power  of  perpetrating  wickedness  with  impunity,  were  not  aban¬ 
doned  by  our  forefathers,  but  that  they  brought  them  with  them  a* 
[he  foundation  stones  of  their  future  freedom,  and  transmitted  them 
as  a  birthright  to  their  posterity  ;  and  that  their  posterity  has,  and 
aurs,  1  trust,  will,  cling  to  them  as  to  the  religion  in  which  they 
place  their  hopes. 

2d.  That  unless  there  has  been  a  reasonable  presumption  of 
•  nnocence,  even  when  it  appeared  that  the  prisoner  had  committed 
i  felony,  and  that  felony  of  the  lightest  and  most  doubtful  kind,  bail 
has  been  refused. 

I  then  come  to  the  cases  of  manslaughter. - It  would  be 

massing  strange  indeed,  if  the  law  had  created  an  exception  in  the 
nstance  of  manslaughter,  which  takes  in  all  the  range  between  the 
ixcusable  act  of  self-defence  and  the  horrid  crime  of  premeditated 
nurder  :  in  its  lightest  degree  it  is  a  felonious  homicide,  and 
:ertainly  above  the  degree  of  petit  larceny.  In  the  graver  in- 
tances,  ii  comes  so  near  the  atrocity  of  wilful,  deliberate,  and 
iremeditated  murder,  that  we  look  in  vain  into  the  transaction,  in 


1C 


vain  into  the  nature  of  the  human  heart,  to  find  the  shade  of  differ¬ 
ence. 

There  are  but  three  reported  cases  where  the  party  accused  ol 
manslaughter  has  been  admitted  to  bail.  In  the  case  in  Massachu¬ 
setts,  it  appears  to  have  been  by  consent. 

In  Bex  vs.  Dalton ,  (2  Stra.  91 1)  a  boy  at  Eton  school  had  had  the 
misfortune  to  kill  his  schoolfellow,  possibly,  and  probably  in  some 
boyish  sport.  By  the  course  of  the  law  he  was  arrested,  and  an 
indictment  was  found  for  manslaughter  :  and  doubtless  there  must 
have  been  such  circumstances  as  created  a  presumption  of  his 
innocence. 

In  the  two  other  cases  from  2  Stra.  1242,  and  1  Salk.  103,  it 
does  not  appear  what  the  circumstances  were.  They  may  have 
been  such  as  to  ensure  the  pardon  of  the  prisoner.  Can  these  au¬ 


thorities  then  warrant  an  inroad  on  long  prevailing  and  justly 


cherished  principles  ?  1  am  still  going  on  the  supposition  that  this 
court  has  the  same  power  as  the  highest  courts  in  England  possess, 
to  bail  in  criminal  cases.  In  the  case  of  the  King  against  Keat  (1 
Salk.  103)  “  the  prisoner  was  indicted  of  murder,  and  also  of  stab¬ 
bing,  and  the  jury  found  him  guilty  of  manslaughter,  and  as  to  the 
rest,  found  a  special  verdict  :  and  bail  was  denied,  for  he  was  ex¬ 
pressly  found  guilty  of  manslaughter,  and  in  that  case  bail  is  nevei 
allowed  till  clergy  had.” 

By  the  report  in  5  Mod.  of  the  same  case,  it  appears  that  it  was  | 
urged  to  the  court  that  the  prisoner  was  a  man  of  quality,  which] 
means,  of  the  order  of  the  nobility,  or  of  a  noble  family  ;  some  ' 
thing  above  the  common  order  ;  but  that  went  as  it  ought  to  do,  foit 
nothing. 

Elementary  writers,  long  after  those  loose  notes  were  written  \ 
have  deduced  the  true  consequences,  and  given  the  doctrine  asl 
established  by  the  decisions  most  approved  of  in  their  time.  Anc 
Hazvkins,  speaking  of  the  Stat.  Westm.  l,says,  that  notwithstanding 
neither  the  Judges  of  the  King’s  Bench,  nor  those  of  any  other  su¬ 
perior  court  of  justice  are  within  the  purview  of  it,  yet  they  nil 
always,  in  their  discretion,  pay  a  due  regard  to  the  rules  prescribec 
by  it  :  “  and  therefore,”  he  says,  “  it  is  difficult  to  find  an  instance 
where  persons  attainted  of  felony,  and  convicted  thereof  by  ver  j 
diet,  general  or  special,  or  notoriously  guilty  of  treason  or  man 
slaughter  by  their  own  confession  or  otherwise,  have  been  admit¬ 
ted  to  the  benefit  of  bail  without  some  special  motive  to  induct 
the  court  to  grant  it.” 

In  Com.  Dig.  title  Bail,  F.  3,  it  is  laid  down  that  the  King’s  Benclj 
will  not  bail  tor  treason  or  murder  unless  there  be  a  reasonable 
cause. 

“  And  w  here  a  man  is  accused  oidy  of  manslaughter  and  not, 
liquet  that  he  committed  the  fact,  he  may  be  bailed.” 

How1  far  the  examination  of  the  facts  in  this  cause,  and  the  appli 
cation  of  these  principles  to  the  case,  may  become  our  melancholy 
duty,  I  do  not  now  say.  If  it  does  become  necessary,  it  will  gi v< 
me  nothing  but  pain  and  anguish. 


17 


I  have  now  examined  the  principles  generally  upon  which  bail  is 
allowed,  and  endeavoured  to  bring  them  home  to  the  case  of  man¬ 
slaughter  ;  and  to  show  how  far  the  King’s  Bench,  which  has  the 
most  ample  range,  would  feel  themselves  empowered  to  bail  in  a 
case  like  this.  I  have  appealed  to  one  principle  which  is  incorpo¬ 
rated  in  the  very  foundation  of  the  criminal  law,  too  ancient,  too 
good,  too  sacred  to  be  disrespected.  God  forbid  it  ever  should. 
No  court,  however  high  its  power,  has  yet  presumed  to  take  away 
the  lien  which  the  law  has  on  the  person  of  the  prisoner,  and  give 
in  its  place  a  mere  lien  on  his  property,  unless  there  be  at  least 
some  reasonable  presumption  of  his  entire  innocence.  The  coun¬ 
sel  have  not  attempted  to  show  any  thing  of  this  kind.  They  have 
very  judiciously  precluded  all  inquiry  into  the  evidence,  but  they 
ask  of  the  court  to  bail  a  prisoner  who  stands  simply  indicted  for 
unlawfully  taking  the  life  of  his  fellow  citizen,  and  they  offer  no 
tittie  of  evidence  that  could  create  in  the  breast  of  charity  itself, 
which  hopeth  all  things  and  is  willing  to  believe  all  things,  a  hope 
that  the  prisoner  is  innocent  of  that  charge  at  the  least. 

The  argument  founded  upon  a  supposed  delay  of  justice,  I  an¬ 
swer  in  a  word.  The  prisoner  was  arraigned  on  the  eighth  of 
January.  He  was  called  on  by  the  district  attorney  and  asked 
if  he  was  ready  for  his  trial  :  and  his  answer  was,  that  he  w  as  not. 

Mr.  Price.  The  counsel’s  statement  is  incorrect  as  to  this  fact. 
The  prisoner,  on  the  Monday  following  his  arraignment,  gave  no¬ 
tice  to  the  district  attorney  that  he  was  ready  for  his  trial. 

Griffin.  At  the  opening  of  the  session  the  prisoner  was  arraigned, 
and  asked  if  he  was  ready,  and  publicly  announced  that  he  was  not. 
It  would  be  sufficient  to  say  that  he  had  not  put  himself  upon  the 
right  that  the  statute  gives  him,  to  petition  for  his  trial  and  be  bail¬ 
ed,  and  finally  discharged  in  failure  of  the  public  prosecutor  to 
bring  on  his  trial-  He  has  not  put  himself  upon  that  right  which 
the  statute  gives  him,  yet  asks  it  of  the  court. 

Far  be  it,  however,  from  me,  or  any  person  concerned  in  this 
cause,  or  having  any  agency  in  the  prosecution,  to  delay  it  for  a 
moment.  We  put  ourselves  upon  the  broad  position,  and  call  upon 
the  counsel  for  the  prisoner  to  negative  any  part  of  it. 

I  might  ask,  would  this  court  explore  new  ways,  and  make  new 
precedents,  where  courts  of  universal  jurisdiction  had  never  ad¬ 
ventured  ? — when  a  higher  tribunal  has  jurisdiction  and  present 
cognizance  of  the  offence  ? — when  the  attorney  general  has  declared 
his  intention  of  trying  this  very  prisoner  tor  the  very  same  act,  at 
the  very  next  ensuing  court  of  Oyer  and  Terminer  ? 

d'he  statute  authorizes  bail  when  there  is  but  suspicion  of  felony; 
so  far  only  it  goes.  Does  the  unfortunate  event  here  admit  of  any 
uncertainty  ?  Does  the  accusation  rest  upon  suspicion  ?  He 
stands  indicted  by  a  grand  jury  of  manslaughter  :  and  twenty- 
four  men,  by  inquisition  taken  upon  their  oaths,  have  pronoun¬ 
ced  him  guilty  of  murder.  Is  that  nothing  but  suspicion  ?  Is 
not  our  law  the  same  as  that  of  England  on  this  point,  or  wherein 

3 


18 


does  it  differ?  Does  it  not  use  the  same  words  of  exception  in  de¬ 
signating  the  persons  to  be  bailed,  as  the  stnt.  1  Westm.  3  Ed.  I.  c. 
15.  viz.  “  persons  in  custody  on  light  suspicion  ?”  (See  the  act  de¬ 
claring  the  powers  of  courts  of  General  Sessions  of  the  Peace,  2 
JV.  R.  L.  N.  Y.  150.  §  7.) 

Let  us  see  then,  whether  in  England  the  court  of  Oyer  and 
Terminer,  extensive  as  its  jurisdiction  is,  has  the  power  to  bail 
in  manslaughter,  though  the  court  of  King’s  Bench  may  do  it  in 
their  discretion.  ( Armstrong  vs.  Lysle,  1  Salk.  61.) 

The  judges  of  this  court  here,  on  the  first  day  that  this  was  stirred, 
expressed  strong  doubts  of  their  power  to  bail  in  any  case  of  man¬ 
slaughter.  But  here,  at  all  events,  is  no  ground  whatever,  no  delay, 
no  presumption  of  innocence  ;  and  the  question  is  no  other  than  this  : 
whether  this  court  will  exercise  a  prerogative  which  the  Oyer  and 
Terminer  in  England  do  not  assume,  and  which  the  highest  court 
of  criminal  jurisdiction  do  not  exercise,  except  where  there  is  evi¬ 
dent  and  plenary  presumption  of  innocence. 

Thus  far  1  have  considered  the  case  as  of  a  simple  indictment  for 
manslaughter,  but  there  is  another  melancholy  feature,  which  can¬ 
not  be  overlooked.  There  is  upon  record  an  inquest  found  by  a 
coroner  and  twenty-four  men  on  oath,  that  the  prisoner  is  guilty  of 
wilful  murder.  To  which  the  only  answer  given  is,  that  it  is  not 
officially  before  the  court ;  and,  therefore,  that  the  court  will  not 
take  notice  of  it.  What!  in  an  appeal  to  the  discretion  of  the  court, 
to  bail  a  man  presented  for  manslaughter,  where  the  court  must 
not  bail  but  upon  the  circumstances  of  the  case,  and  strong  pre¬ 
sumptions  that  he  has  not  committed  the  offence  he  is  charged  with  ? 
Are  the  court  to  shut  their  eyes  against  the  evidence  of  a  record  of 
their  own,  which  pronounces  him  guilty  of  the  same  act  in  a  still 
more  aggravated  sense  ?  In  an  appeal  to  the  discretion  of  the  court, 
the  gentlemen  are  too  well  read  in  law  to  put  their  application 
upon  any  other  ground.  Can  judicial  magistrates  shut  their  eyes 
against  what  all  the  world  are  bound  to  know  and  notice  ?  A  re¬ 
cord  '  and  not  only  that,  but  one  filed  in  their  own  court  and  under 
their  own  eyes.  If  the  whole  community,  if  the  whole  world  are 
bound  to  recognise  it,  can  it  be  asked  of  this  court,  whose  know¬ 
ledge  of  it  is  most  unavoidable  and  necessary,  whether  it  ought 
strictly  to  be  filed  in  this  court  or  the  Oyerand  Terminer,  to  blot  out 
all  knowledge  or  remembrance  of  what  they  see  as  it  were  before 
their  eyes  ? 

Let  us  see  how  this  would  be  considered,  and  how  the  proceed¬ 
ings  would  be  in  England  ;  and  it  will  be  then  only  to  see  whether 
in  this  state,  or  in  the  United  States,  there  is  any  thing  that  has  al¬ 
tered  that  law  or  prescribed  any  different  course. 

The  counsel  here  read  from  1  Chitty's  Cr.  L.  163-4,  to  show 
that  the  prisoner  may  be  indicted  upon  either  finding,  and  if  acquit¬ 
ted  on  the  one,  to  plead  a  former  acquittal  when  arraigned  on  the 
other.  And  the  case  of  Mary  Cole ,  from  3  Camp.  JV.  P.  372,  where 
the  prisoner  was  charged  with  concealing  the  death  of  a  bastard 
child.  The  bill  of  indictment  was  not  found,  yet  the  court  tried 


19 


the  prisoner  »n  the  inquisition,  and  inflicted  the  punishment  due 
to  the  offence. 

Now,  if  such  be  the  law  and  the  practice  in  England,  why  should 
it  be  different  with  us  ?  The  amendments  to  the  constitution  of  the 
United  States  do  not  touch  proceedings  in  the  state  courts.  The 
first  article  does  not  say  that  state  legislatures  shall  not  make  such 
and  such  laws,  but  only  means  that  congress  shall  make  none  such. 
And  in  the  same  sense  is  the  5th  article  to  be  understood,  when  it 
says  that  “  no  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  militia  in  actual  service,”  &c.  Answerable  where  ?  Surely  in 
courts  instituted  by  the  general  government,  under  the  powers 
given  by  the  constitution,  and  administering  that  constitution  and  the 
laws  of  congress  within  and  under  the  authority  and  jurisdiction  of 
congress,  and  no  other  where. 

By  the  10th  article,  “the  pow’ers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibited  by  it  to  the  states,  are  re¬ 
served  to  the  states  respectively,  or  to  the  people.”  And  by  the 
11th,  “the  judicial  power  of  the  United  States  shall  not  be  con¬ 
strued  to  extend  to  any  suit  in  law  or  equity,  commenced  or  pro¬ 
secuted  against  one  of  the  United  States,  by  citizens  of  another 
state,  or  by  citizens  or  subjects  of  any  foreign  state.”  Thus  do  all 
those  provisions  begin,  proceed,  and  end,  in  nothing  else  than  re¬ 
straining  and  limiting  the  extent  of  the  delegated  powers  of  con¬ 
gress  ;  and  are  intended  to  show  the  extent  of  what  was  given,  and 
what  remained  in  the  great  reservoir  of  the  state  governments  and 
constitutions,  and  in  no  other  manner  do  they  concern  the  original 
jurisprudence  of  those  states.  What  has  any  state  to  do  with  the  naval 
forces  ?  Can  the  bill  of  rights  of  a  state  be  for  nothing  ?  Or  is  it  not 
there  we  should  look  to  see  if  there  be  any  thing  confining  trials 
in  all  cases  to  indictments  by  grand  juries  ? 

The  4th  section  of  the  act  concerning  the  rights  of  the  citizens, 
or  the  Bill  of  Rights  of  this  state,  says,  that  “  no  person  shall  be 
put  to  answer  without  presentment  before  justices,  or  matter  of 
record,  or  due  process  of  law  according  to  the  law  of  the  land.” 

The  third  had  said  before,  that  no  citizen  of  this  state  should  be  ta¬ 
ken  or  imprisoned  for  any  offence  upon  petition  or  suggestion,  unless 
it  be  by  indictment  or  presentment  of  good  and  lawful  men  of  the  same 
neighbourhood  where  such  deeds  be  done,  in  due  manner  or  by 
due  process  of  law.  Here  is  a  provision  that  presentments  shall 
be  by  good  and  lawful  men  ;  and  that  proceedings  shall  be  in  due 
manner,  and  by  due  process  of  law.  And  the  counsel  have  admit¬ 
ted  that  convictions  have  taken  place  in  this  state,  founded  upon 
coroners’  inquisitions.  AVe  cannot  suppose  these  to  have  been  against 
the  law. 

And  where  is  the  hardship  ?  If  he  can  make  his  innocence  ap¬ 
pear,  he  must  be  acquitted.  The  point  upon  which  he  will  be 
tried  is  not  now  before  the  court  ;  nor  is  there  a  wish  but  that  the 
most  pure  unmingled  justice  should  prevail,  be  tried  where  and 


20 


when  he  will.  It  is  enough  for  the  present,  that  there  exists  a 
record  containing  a  charge  upon  which  he  may  be  arraigned  and 
tried,  and  upon  which  this  court  has  not  jurisdiction  to  try ,  nor  yet 
to  bail  :  tor  as  1  have  shown,  this  court  in  so  doing  would  do 
what  a  court  of  Oyer  and  Terminer  in  England  would  not  have  the 
power  to  do.  When  this  record  is  accompanied  with  another, 
now  upon  the  tiles  of  this  same  court,  containing  a  charge  of  mur¬ 
der  in  the  most  solemn  form,  can  this  application  succeed  l  Sup¬ 
pose  this  inquisition  could  not  be  proceeded  upon,  does  it  not  at 
least  go  to  fortify  the  presumption  of  the  guilt  of  manslaughter  ? 
The  one  instrument  charges  manslaughter,  the  other  accuses  him 
of  murder.  Tw  enty-four  men  on  each  jury  would  amount  to  forty- 
eight,  who  all  concur  that  he  was  at  least  guilty  of  manslaughter. 
With  these  accumulated  proofs,  and  nothing  to  oppose,  can  the  court 
be  called  upon,  without  hearing  an  affidavit,  or  being  apprised  of 
any  circumstance  to  modify  or  qualify  the  case,  to  deviate  from  the 
regular  course,  and  disregard  that  controlling  principle  that  governs 
in  all  cases  of  bail,  and  to  unlock  the  prison  doors  before  the  day 
when  the  traverse  jury  shall  be  sworn  to  pass  upon  their  oaths, 
and  a  fair  trial  be  had  between  the  people  and  the  prisoner  ?  I 
cannot  for  a  moment  believe,  I  say  it  w  ith  great  deference,  that 
this  court  will  adopt  a  proceeding,  which  must  not  only  shock  the 
human  understanding,  but  overturn  principles  of  law  and  public  se¬ 
curity,  hallowed  and  sanctified  through  the  lapse  of  eight  hundred 
years. 

The  Mayor.  I  have  been  of  opinion  from  the  first,  that  the  coro¬ 
ner’s  inquest  was  improperly  put  upon  the  files  of  this  court  ;  but 
the  same  officer  who  prosecutes  here,  has  power  in  every  part  of 
the  state.  There  are  statutable  provisions  that  the  party  shall  be 
bailed  where  there  has  been  delay,  unless  that  delay  shall  be  for 
certain  specified  cause.  Now  it  may  be  necessary  for  us  to  exa¬ 
mine  whether  there  has  been  delay  ;  and  if  so,  whether  it  has  been 
accounted  for.  The  public  prosecutor  may  say,  1  have  not  put 
him  upon  his  trial  here,  because  of  the  coroner’s  inquest,  on  which 
he  is  to  be  triad  at  a  higher  court,  for  a  higher  offence  ;  and  this 
inquest  may  be  brought  to  our  view  (supposing  it  not  a  record  of 
this  court)  by  the  suggestion  of  the  coroner  himself. 

Munro.  If  the  court  should  determine  to  look  into  it  and  take 
judicial  notice  of  it,  l  should  then  pray  that  the  testimony  should 
accompany  it. 

The  Mayor  wished  the  counsel  to  look  into  the  case  of  the  Com-  < 
mon-wealth  of  Pennsylvania  against  Oswald,  where  there  was  much 
able  discussion  (if  he  recollected  rightly)  of  the  amendments  of  the 
Constitution  of  the  U.  S.  and  where  they  were  held  not  to  apply. 

N.  B.  The  mayor  afterwards  recollected  that  the  case  he  al¬ 
luded  to  turned  upon  the  Bill  of  Rights  and  Constitution  of  that  state, 
and  not  upon  the  Constitution  of  the  U.  S.  or  its  amendments,. 

Wells,  for  the  prosecution,  begged  to  know  if  it  was  in  order  that 
he  (being  the  third  counsel)  should  address  a  few  observations  to 
the  court,  which  he  said  should  be  very  brief. 


21 


The  court  considering  this  as  a  criminal  case  of  novelty  and  im¬ 
portance,  desired  him  to  [Proceed. 

He  then  stated  that  he  had  not  been  in  the  citj'  when  the  former 
discussions  and  proceedings  took  place,  and  had  returned  too  late 
from  Albany  to  make  any  preparation  for-an  argument,  and  would 
submit  to  the  court,  without  entering  into  details,  the  view's  he  had 
formed  upon  general  principles,  and  the  conclusions  he  drew  from 
the  authorities  which  had  been  offered,  and  perhaps  a  few  others. 
He  would  ask  first,  under  what  circumstances  this  application  was 
made  ?  Was  it  a  case  of  one  committed  upon  suspicion  merely  ? 
No  !  that  is  not  at  all  the  ground  ailedged.  For  the  accusation  no 
longer  rests  in  suspicion,  hut  is  resolved  by  a  regular  judicial  in¬ 
quiry  into  a  solemn  impeachment,  to  w  hich,  by  the  law  of  the  land, 
the  prisoner  must  answer.  1  mean  now  to  view  this  question  inde¬ 
pendently  of  the  coroner’s  inquest,  upon  the  ground  of  the  in¬ 
dictment  alone.  Then  it  stands  thus  :  instead  of  its  being  a  mere 
case  of  suspicion,  it  is  a  case  of  one  against  whom  an  indictment 
has  been  found,  upon  which  he  is  to  be  tried  for  a  felony  of  no 
ordinary  grade,  which  approaches  sometimes  so  near  in  its  charac¬ 
ter  to  the  atrocious  crime  of  murder,  that  the  shade  which  forms 
the  distinction  is  sometimes  hardly  perceptible.  Whether  the  case 
we  have  now  in  hand  be  a  case  of  that  kind,  1  shall  not  now  dis¬ 
cuss.  It  is  enough  for  my  argument  that  he  stands  before  the  court 
charged  with  a  felony  of  a  very  serious  character,  and  whether, 
upon  an  application  lo  the  favour  or  discretion  of  the  court,  he 
ought  to  be  bailed. 

This,  which  is  called  the  favour  or  the  discretion  of  a  court,  is 
not  an  exercise  of  arbitrary  will  or  pleasure.  It  is  not  enough 
for  the  court  to  say  sic  volo  or  sic  jubeo.  If  the  term  were  taken 
in  that  sense,  it  would  be  a  word  expressive  of  the  most  degrading 
tyranny.  If  it  was  free  to  open  the  prison  doors  for  one  individual 
under  the  very  circumstances  that  closed  them  on  others,  it  would  be 
either  partial  on  the  one  hand,  or  cruel  and  unrighteous  on  the 
other.  It  is  only  the  circumstances  and  facts  in  the  case,  and  not 
the  situation  or  fortune  of  the  accused  that  should  be  the  ground  of 
exemption  from  the  ordinary  rule.  If  the  ordinary  course  is  to 
bail  prisoners  after  indictment  found  against  them  for  felonious  ho¬ 
micide,  then  all  should  be  bailed  :  if  it  be  not  of  course  and  right 
upon  that  ground,  it  cannot  be  so  in  such  a  case  as  this  or  any  other, 
while  sound  discretion  prevails  and  presides  in  the  tribunals  of 
justice  and  of  law.  For  where  are  the  special  circumstances! 
where  the  single  fact  to  induce  the  court  to  depart  from  the  gene¬ 
ral  rale,  and  upon  any  principle  of  sound  discretion  to  extend  the 
favours  of  the  law  towards  him — that  favour  which  only  belongs 
to  cases  where  the  matter  stands  indifferent,  and  (he  circumstances 
•raise  a  presumption  in  favour  of  the  prisoner’s  innocence  ?  What 
is  there  here  to  make  it  stand  indifferent  ?  What  presumption  that 
the  prisoner  may  not  be  guilty  of  manslaughter  ?  What  of  his  in¬ 
nocence  ?  If  neither — then  he  is  no  object  of  that  favour  which  is 
appealed  to  on  his  behalf.  It  cannot  be  inferred  from  the  oaths  of 


22 


the  grand  jury.  Certainly,  the  finding  of  the  coroner’s  inquest  by 
twenty-four  men  upon  their  oattis,  does  not  diminish  the  probability 
of  his  guilt.  What  other  grounds  then  are  there  upon  which  to 
rest  this  claim  to  so  unusual  an  indulgence  ?  In  what  case  of  a 
similar  description  has  the  power  of  bailing  been  ever  exercised  ? 
Has  any  such  case  been  shown  of  a  prisoner  indicted  for  man¬ 
slaughter  and  found  guilty  of  murder  by  a  coroner’s  inquest,  and 
yet  admitted  to  bail  ? 

Neither  of  the  cases  in  Strange  or  Satkield,  are  the  slightest  war¬ 
rant  for  such  an  application.  They  merely  show  that  a  court 
having  competent  power  to  bail,  will  do  so  where  there  is  strong 
presumption  of  innocence  ;  and  that,  on  a  finding  by  a  coroner,  the 
court  will  bail  where  it  would  not,  were  the  same  matter  presented 
by  a  grand  jury;  and  for  the  reason  there  given,  that  the  coroner’s  jury 
not  being  sworn  to  secresy,  the  court  can  look  into  the  depositions 
and  see  to  what  they  amount :  so  that,  though  it  be  found  murder, 
they  may  see  it  not  to  be  so  and  admit  to  bail,  and  though  it  be  found 
manslaughter,  they  may  think  it  murder  and  refuse.  But  here  is  a 
record  which  the  court  cannot  pass  over  ;  and,  if  the  inquest  be  any 
thing,  it  cannot  be  less  than  presumptive  evidence  of  guilt,  and  not 
of  innocence. 

I  repeat  it  then,  that  what  is  now  asked  is  what  never  yet  was 
done  :  that  is,  for  the  court  to  bail  a  prisoner  who  stands  before  it 
indicted  of  manslaughter,  without  a  single  circumstance  tending 
either  to  mitigate  or  excuse,  or  any  presumption  whatever  of  in¬ 
nocence  ;  nothing  to  mask  the  nakedness  of  the  fact,  or  lighten  the ' 
shade  of  guilt.  (The  counsel  then  commented  upon  the  cases  with  I 
much  acumen,  and  proceeded  :) 

The  court  then  knows  nothing,  sees  nothing,  but  an  inquisition  i 
for  murder  and  an  indictment  for  manslaughter.  But  the  one  is 1 
said  not  to  be  before  them  :  and  the  other  is  certainly  not  bailable 
of  course.  And  if  the  inquisition  be  not  before  them,  then  neither 
can  the  depositions  that  accompany  it.  They  are  indeed  expressly 
shut  out  by  the  prisoner’s  counsel  themselves  from  the  view  of  the 
court. 

I  have  now  argued  as  if  the  coroner’s  inquest  had  been  for  man¬ 
slaughter  only.  Yet,  upon  the  finding  by  the  coroner,  and  the  in¬ 
dictment  together,  it  is  settled  law,  that  bail  will  not  be  allowed,  at 
least  where  there  are  no  other  circumstances  to  justify  the  mea¬ 
sure.  I  shall,  therefore,  dismiss  this  point,  confident  that  if  the 
inquest  be  laid  out  of  view,  and  the  indictment  alone  considered, 
the  court  cannot,  without  violating  a  great  principle  of  law,  admit  to 
bail,  and  therefore  will  not  do  it. 

2d.  I  will  now  inquire  what  effect  this  inquisition  ought  to  hare  \ ' 
We  are  told  it  ought  to  be  laid  out  of  the  case  for  every  purpose.  Thai  I 
the  court  should  shut  its  eyes  upon  it.  That  it  belonged  to  the  Oyei 
and  Terminer;  and  if  it  were  here,  the  court  would  take  no  notice 
of  it.  Suppose,  however,  that  it  remained  in  the  coroner’s  hands  i 
and  he  stood  here  as  a  public  officer,  and  presented  it  to  the  court 
would  they  not  be  bound  to  notice  him  and  it  ?  It  is  enough  that  then 


23 


is  such  a  finding  ;  what  it  may  be,  or  what  its  effects,  it  is  not  now 
the  time  for  me  to  discuss  or  the  court  to  decide.  It  appears  suffi¬ 
ciently  and  judicially,  whether  the  court  find  it  upon  their  own  files, 
or  receive  it  from  the  officer  in  open  court  on  behalf  of  the  public. 
The  gentlemen  admit  the  right  to  bail  to  be  commensurate  with  the 
jurisdiction  to  try.  This  court  then  cannot  try  ;  and,  consequently, 
cannot  bail  for  the  offence  there  charged  ;  and  to  what  purpose  bail 
for  the  minor  offence,  when  the  prisoner  must  remain  in  custody 
upon  the  major  ?  Would  it  not  be  an  idle  act  indeed,  to  inquire  into 
the  merits,  since  this  court  cannot  bail  whether  those  merits  be 
disclosed  or  not?  The  lesser  is  merged  in  the  greater  accusation, 
which  cannot  be  tried  here.  That  tribunal  only  can  bail  which  ha» 
jurisdiction  co-extensive  with  the  charge  :  and  what  is  that  tribunal  l 
The  Supreme  Court,  or  one  of  its  judges,  can  alone  bail  upon  both 
offences  charged,  and  of  course  upon  either.  Because,  when  they 
exercise  their  power  on  the  greater,  they  at  the  same  time  neces¬ 
sity  dispose  of  the  lesser.  Here  it  would  be  reversing  the  order. 
But  it  is  not  only  because  the  Supreme  Court  has  jurisdiction  to 
ry  for  murder  that  it  has  the  power  to  bail,  but  because  it  is  the 
;reqt  judiciary,  the  high  and  paramount  tribunal  to  which  the  largest 
lowers  are  given  ;  which  corrects  the  errors  of  inferior  courts, 
ind  to  whose  wisdom  and  scrupulous  justice  that  great  and  discre¬ 
ionary  power  is  only  confided. 

The  authority  in  1  Salk.  60.  establishes  this  as  the  true  principle  ; 
lecause  by  that  it  appears  that  the  justices  of  Oyer  and  Terminer, 
hough  they  have  the  well  known  power  to  try,  have  not  power  to 
i ail  for  murder.  If  this  be  law  then,  it  cuts  up  by  the  root  the 
nain  hypothesis  of  the  counsel,  that  the  right  to  bail  is  co-extensive 
vith  the  right  to  try  ;  and  that  tribunal  which  can  dispose  of  the 
vhole  subject  is  certainly  the  most  proper  to  be  applied  to,  because 
t  only  can  give  effectual  remedy  ;  whereas  it  is  otherwise  a  spiff¬ 
ing  up  of  a  motion  applying  to  one  tribunal  for  partial  relief,  and 
or  another  portion  to  another. 

It  is  then  enough  that  this  court  knows  that  there  is  such  a  re- 
ord  ;  it  cannot  both  know  of  it,  and  act  upon  the  ground  of  having  no 
nowledge  of  it  ;  it  cannot  look  beyond  it,  and  examine  into 
he  evidence  upon  which  it  is  founded.  Indeed,  it  would  be  in  vain  ; 
ince  even  if  it  should  think  the  offence  bailable,  the  prisoner  must 
emain  in  custody  upon  that  charge  on  record,  which  rebuts  all  pre- 
umption  of  inuocence.  The  most  that  can  be  inferred  from  any 
f  the  cases  cited,  is  to  this  amount  :  that  where  there  is  an  inqui- 
tion  finding  the  crime  to  be  murder,  the  King’s  Bench,  or  itsjudg- 
s,  may  look  into  the  evidence  and  bail,  if  they  find  the  offence 
ailable  ;  but  that  no  other  court  or  judge  can  do  so  ;  not  even  the 
>yer  and  Terminer,  though  it  has  power  to  try  the  offence.  As 
lis  court  has  neither  power  to  try  nor  bail,  it  would  be  nugatory 
>  examine  the  inquisition  or  the  evidence,  as  it  would  not  advance 
lem  one  step  in  deciding  whether  the  prisoner  was  to  be  bailed 
r  not. 

I  have  shown,  that  upon  the  indictment  for  manslaughter  singly, 


independent  of  the  inquest,  there  is  no  ground  for  favour,  or  what 
is  called  discretion,  to  deviate  from  the  regular  course  of  proceed¬ 
ing,  and  still  less  is  there  when  the  charge  is  coupled  with  another 
beyond  the  reach  of  this  court,  and  which  must  be  disposed  of  by  a 
jurisdiction  alone  competetent  to  try  or  examine  the  merits  of  that 
charge,  and  the  amount  of  the  presumption  of  guilt  or  innocence. 

It  is  said,  this  court  will  not  notice  this  inquisition,  because  il 
has  no  jurisdiction  to  try  the  prisoner  upon  it.  is  that  a  reasor 
why  this  court  should  assume  jurisdiction  to  decide,  that  notwith¬ 
standing  that  instrument,  the  prisoner  is  bailable — why  it  sbonlc 
determine  without  having  jurisdiction  to  try,  to  execute  a  powei 
which  the  court  that  has  jurisdiction  to  try,  would  not  perhaps 
venture  to  assume  ?  Will  not  this  court  rather  leave  that  delicate 
question  to  that  which  has  full  jurisdiction  to  try  and  pronounct 
in  the  first  instance,  leaving  it  still  open  to  the  party  to  appeal,  am  ; 
be  redressed  if  he  is  wronged,  where  all  errors  can  be  rectified 
Is  it  not  better  than  in  the  very  incipient  stage  to  stop  the  cause  am 
decide  that  the  record  is  not  sufficient,  and  that  no  court  has  powe 
to  convict  upon  it  ?  Yet  so  the  court  must  decide  if  it  looks  into  th 
merits  of  the  inquisition,  and  having  done  so,  admits  the  prisoner  t 
bail.  Of  such  importance  to  the  true  course  of  public  justice,  i 
the  right  decision  of  this  preliminary  question. 

It  is  enough  that  authorities  show,  and  that  it  is  admitted,  thatth 
prisoner  may  be  tried  upon  that  inquest  in  a  higher  court.  Sup 
pose  it  now  called  on  for  trial  at  the  Oyer  and  Terminer,  and  thes 
exceptions  are  not  there  taken;  will  not  the  trial  proceed  ?  Be  j 
the}'  will  be  taken  !  Be  it  so  ;  and  which  is  the  most  fitting,  thr  ; 
they  be  then  decided  by  that  court  that  can  try  the  cause,  or  her  i 
now  in  anticipation  by  this  court,  which  has  no  jurisdiction  ofit.  Wi 
this  court  run  so  far  ahead  to  decide  upon  principles  of  law  <  1 
such  importance,  where  the  consequences  cannot  be  foreseen  ? 

The  objection  founded  on  the  amendments  of  the  constitutior 
bears  its  own  death-warrant.  Neither  clerk  nor  layman  can  mistak 
their  interpretation,  notwithstanding  the  doubts  that  ingenuity  h; 
attempted  to  hang  upon  their  construction,  lie  that  runs  may  reat  ; 
It  manifestly  refers  to  offences  under  the  laws  of  the  United  State: 
One  word  for  all  will  prove  it.  It  refers  to  land  and  naval  force 
Can  that  refer  to  any  thing  hut  the  United  States  ?  What  nar 
force  has  any  state  ?  Let  that  suffice,  without  wasting  any  moi 
time  to  show  what  was  the  subject  referred  to,  and  meant  to  I 
regulated  by  that  amendment. 

The  history  of  the  passage  of  those  amendments  forbids  ar 
other  interpretation.  The  principles  and  opinions  of  every  indii 
dual  concerned  in  the  passage  of  those  amendments,  is  know 
They  grew  entirely  out  of  the  jealousies  of  the  states  which  fear* 
that  congress,  or  the  general  government,  would  not  merely  exe 
cise  the  power  delegated  to  them,  but  exceed  it  and  encroach  upt 
the  rights  and  sovereignty  which  the  states  had  not  thought  prop' 
to  commit  to  them,  and  perhaps  enact  laws  not  confined  to  gener 
and  national  purposes,  as  was  intended,  but  interfering  with  the 

t 


25 


respective  municipal  laws  and  constitutions,  thereby  altering  the 
state  laws  in  tilings  which  they  would  not  have  altered,  aud  gradu- 
ally  abridging  or  overturning  their  sovereignty.  The  whole  scope* 
quality  and  bearing  of  the  amendments,  therefore,  was  to  lay  more 
definite  conditions  and  restraints  upon  the  exercise  of  that  limited 
power.  None  of  those  amendments,  on  the  other  hand,  were  evef 
supposed  to  have  been  for  the  purpose  of  abridging  any  part  of  the 
sovereignty  of  the  states.  They  were  merely  to  prevent  congress 
from  any  act  that  might  derogate  from  the  state  sovereignty »  It 
was  speaking  to  congress  in  these  words  :  If  you  proceed  to  esta¬ 
blish  a  system  of  penal  laws  for  the  United  States,  we  consent,  pro¬ 
vided  you  confine  your  operations  strictly  within  the  authority  we 
have  delegated  to  you,  that  you  never  exceed  it,  nor  lose  sight  of 
the  purposes  for  which  it  was  entrusted  to  you  ;  and  never  attempt 
to  alter  the  state  laws  or  constitutions,  or  abridge  the  state  sovereign¬ 
ties  in  any  manner^ 

If,  therefore,  at  the  time  those  amendments  wete  made,  the  courts 
could  proceed  to  try  a  prisoner  upon  a  coroner’s  inquest,  or  by 
information,  so  can  they  now  ;  because  no  new  power  was  given 
by  those  amendments.  Their  language  is  negative  :  their  object 
was  to  prevent  that  very  thing  which  they  are  now  said  to  have 
effected  ;  and  this  is  so  universally  true,  that  it  is  impossible  to  use 
any  one  of  the  amendments  to  any  such  purpose. 

1  have  now  stated  those  general  principles  upon  which  I  think  I 
can  certainly  rely  ;  if  the  court  will  apply  them,  this  motion  must 
be  refused. 

Munro ,  in  reply.  Probably  justice  to  myself  may  excuse  me 
in  stating,  that  1  was  only  yesterday  retained  ;  I  have,  of  course* 
had  little  time  for  preparation.  If  I  should  reason  desultorily,  of 
quote  less  accurately  than  1  could  wish,  the  court,  1  hope,  will  grant 
me  its  indulgence  whilst  I  briefly  reply  to  the  arguments  of  the  coun¬ 
sel  for  the  prosecution. 

It  was  observed  by  one  gentlemah,  that  the  natural  course  Wag 
not  to  bail  for  felony  or  treason.  Why  is  it  the  natural  course  ?  Is 
it  because  nature  indicates  that  course  ?  If  I  were  to  consult  my 
Bature,  it  would  tell  me  that  the  best  course  was  to  use  fit  and  ra¬ 
tional  means  to  biing  the  accused  to  a  fair  trial  ;  and  that  those 
means  were  most  proper  which  would  prevent  him  suffering  more 
by  previous  confinement  than  probably  would  be  the  amount  of  his 
punishment  even  should  he  be  convicted  ;  where  it  might  happen 
that  after  a  punishment  by  imprisonment  for  months,  the  jury 
might  acquit  the  person  so  punished,  of  all  crime  or  guilt.  Nature, 
and  reason,  and  justice,  are,  I  think,  all  equally  opposed  to  such  a 
course.  Despotism  may  prescribe  such  a  course,  but  it  was  not 
the  course  of  the  common  law.  It  was  not  that,  established  by  the 
hardy  sons  of  Germany,  who  delivered  down  to  their  posterity  the 
principles  of  the  common  law,  which  our  ancestors  brought  with 
them  as  their  birthright,  and  which,  through  them,  we  now  enjoy 
as  ours.  But  this  is  a  question  of  dry  law,  and  not  of  expediency 
»or  of  speculation.  The  court  will  banish  all  sympathies  and  feel 


26 


jpgs  in  such  a  case,  and  not  permit  counsel  to  harrow  up  the  public 
mind. 

That  all  men  were  presumed  innocent  till  they  were  found  guilty, 
I  had  supposed  to  be  the  mild  maxim  of  our  law.  And  therefore 
it  was,  that,  applying  to  the  favour  of  the  court,  1  hoped  it  would 
rather  have  said  to  the  public  prosecutor,  what  have  you  against 
the  prisoner  that  rebuts  this  presumption  of  the  law,  than  call  upon 
the  prisoner  to  rebut  the  presumption  of  his  guilt.  And  when  I 
said  that  the  court  should  call  for  the  inquest  and  read  the  evidence, 
1  hoped  that  the  court  would  have  perused  it  silently,  and  pointed 
out  to  the  counsel  in  what  it  did  or  did  not  appear  important  or 
sufficient,  and  that  we  should  not  have  been  called  upon  affirmatively 
in  the  first  instance  to  show  our  innocence. 

I  have  not  lately  had  occasion  to  examine  the  statutes  of  Edw.  I. 
But  if  1  remember  rightly,  they  only  went  to  regulate  the  duties  of 
coroners,  sheriffs,  and  justices,  but  prescribe  no  rule  to  the  tribu¬ 
nals  that  try  the  accused.  The  judges  of  the  Supreme  Courts,  the 
King’s  Bench,  Common  Bench,  and  Exchequer,  do  not  follow,  and 
are  not  bound  by  them  ;  because,  having  jurisdiction  to  try,  they 
have  power  to  bail,  and  form  their  own  rules. 

It  has  been  said  w ith  some  triumph,  that  by  a  case  which  I  cited, 
( Armstrong  vs.  Lysle ,  1  Salk.  GO.)  it  appears  that  the  court  of  Oyer 
and  Terminer  have  not  power  to  bail.  The  counsel  did  not  distin¬ 
guish  nor  perceive  that  that  was  a  case  after  conviction. 

( The  counsel  read  the  case,  concluding  that  the  party  had  his  clergy, 
and  teas  burned,  and  then  bailed.) 

Griffin  asked  whether  the  counsel  read  from  the  text  of  the  book. 

Munro.  There  is  not,  I  venture  to  say,  such  an  expression  in  the 
whole  of  the  case,  as  that  the  court  cannot  bail  because  it  cannot 
try.  He  again  read,  “  In  such  a  case  as  this.”  As  what  ?  Why 
when  a  verdict  had  been  pronounced  finding  the  prisoner  guilty  of 
manslaughter !  And  it  will  appear  (he  added)  that  the  bail  re¬ 
quired  in  that  case  was  not  to  the  indictment,  but  to  an  appeal.  It 
was  indeed  urged  by  the  appellant,  that  he  ought  not  to  be  bailed, 
because  he  was  found  guilty  of  manslaughter.  But  the  court  then 
said,  that  though  the  Oyer  and  Terminer  could  not  bail  in  such  case, 
that  court  (the  King’s  Bench)  could,  and  he  was  bailed  on  the 
crown  side,  and  the  appeal  lost. 

Still  les9  is  the  King  against  Hunt  (Salk.  103)  an  authority  for  re¬ 
fusing  bail  here,  for  there  it  was  the  case  of  a  man  indicted  of  mur¬ 
der,  and  also  of  stabbing.  He  was  expressly  found  guilty  of  man¬ 
slaughter,  and  a  special  verdict  as  to  the  rest.  He  could  not  be 
bailed  till  his  clergy  was  allowed.  What  then  ?  because  a  man  con¬ 
victed  could  not  be  bailed  before  he  had  been  put  to  read  and  have 
his  clergy  ;  is  that  an  argument  that  one  committed  merely  for  safe 
keeping  till  his  trial,  may  not  be  bailed  ? 

The  case  of  the  King  vs.  Dalton,  (2  Stra.  911)  was  relied  on  ai 
an  authority,  that  it  was  incumbent  upon  the  prisoner  to  show  some¬ 
thing  in  mitigation  before  he  could  ask  to  be  bailed.  Now  it  merely 
shows  that  the  court  or  judge  will  bail  where  a  coroner’s  inquest 


27 


finds  murder,  if,  upon  looking  into  the  depositions,  it  appears  n» 
more  than  manslaughter.  Here  the  judge,  at  his  own  chambers, 
for  the  guidance  of  his  own  conscience,  looks  into  the  depositions 
taken  by  the  coroner,  and  without  regard  to  the  signing  or  sealing 
of  the  twenty-four  men,  exercises  his  own  judgment,  as  all  the 
books  agree  that  he  may  do. 

I  have  expressly  admitted  that  the  statute  cited  by  my  associate 
counsel,  did  not  apply  to  this  court.  But  I  did  not  say  that  this 
court  could  not  take  notice  of  the  inquest.  1  meant  that  either 
they  ought  not  to  look  into  it,  since  it  was  not  before  them,  or 
else  if  they  did  notice  it  at  all,  they  ought  to  examine  critically 
whether  it  was  such  a  legal  instrument  as  they  were  forced  to  give 
credence  to,  and  to  be  bound  by.  And,  suppose  it  entirely  de¬ 
fective  or  void  :  that  it  was  a  finding  by  eleven  men,  or  by  twenty- 
four  with  the  coroner,  but  without  their  seals,  would  this  court  no¬ 
tice  it  ?  For  certain  purposes  they  would  decide  upon  it,  but  not  for 
others.  They  would  not  try  nor  give  judgment  upon  it.  But 
where  it  was  pressed  upon  them  as  a  matter  to  influence  their  dis¬ 
cretion  and  operate  against  liberty,  they  will  then  see  whether  it 
be  what  it  purports  to  be,  or  something  else  to  which  they  cannot 
give  credence  or  weight.  1  said  this  court  would  never  finally  dis¬ 
pose  of  it:  1  say  so  still.  It  will  not  quash  it,  it  will  not  direct  an 
acquittal  upon  it,  nor  finally  discharge  from  it.  And  in  this  way 
only  I  meant  to  say  that  the  court  would  examine  it. 

I  admit  it  to  be  the  daily  practice  in  England,  to  try  upon  the 
coroner’s  inquest ;  and  that  the  defendant  must  be  tried  upon  it,  un¬ 
less  it  be  illegal  or  defective.  I  admit  the  adoption  of  the  whole 
common  law  of  England,  with  the  exceptions  of  our  own  statutes 
and  constitution,  when  they  differ  in  any  part.  And  1  admit  that 
our  own  bill  of  rights  is  the  law  of  this  state,  unaltered  by  the  con¬ 
stitution  of  the  United  States  or  its  amendments,  the  same  as  it 
existed  long  before  that  constitution  was  made.  And  I  admit  that 
the  words,  “  other  due  course  of  law,”  qualify  the  clause  that  would 
seem  to  exclude  trials  upon  coroners’  inquisitions. 

The  case  in  1  Dallas,  Respublica  vs.  Oswald,  mentioned  by  his 
honour  the  mayor,  was  not  a  decision  in  the  last  resort ,  nor  was  it 
upon  this  question.  It  was  not  a  question  upon  the  constitution  of 
the  United  States  ;  but  whether  the  bill  of  rights  of  that  common¬ 
wealth  did  not  preclude  the  trial  of  a  prisoner  on  the  finding  of  a 
coroner  ;  if  so,  there  is  no  American  decision  upon  the  point. 

I  shall  now  retrace  the  outlines  of  my  argument.  By  the  United 
States’  constitution,  the  party  can  be  tried  only  upon  the  indict¬ 
ment  of  a  grand  jury,  and  not  by  any  other  mode,  as  by  informa¬ 
tion  or  inquisition  of  office.  And  this  law  is  universal  and  para¬ 
mount.  When  that  constitution  says,  “  there  shall  be  no  ea;  post 
facto  laws  ;  or,  that  persons  shall  not  be  twice  tried  or  put  in 
jeopardy  for  the  same  offence,”  may  not  that  benefit  be  claimed 
by  virtue  of  that  constitution,  at  the  hands  of  every  tribunal  with¬ 
in  the  range  of  the  United  States  ?  This  is  the  universal  law  ;  and 


28 


courts  will  not  be  forward  to  beat  down  the  protecting  shield  o t  all 
the  citizens  of  every  state,  by  dqubtful  exceptions. 

It  was  said,  that  the  ordinary  rule  is,  not  to  bail  for  felony  ;  and, 
that  it  would  be  nugatory,  since  we  did  not  ask  to  be  discharged 
from,  the  inquisition ,  but  simply  to  be  bailed  on  the  indictment 
which  is  before  this  court.  Thus,  putting  the  case  upon  its 
true  footing,  renders  an  answer  unnecessary  to  many  of  the  points 
urged  on  behalf  of  the  prosecution.  Nor  will  I  inquire  whether 
the  lesser  offence  be  merged  in  the  greater.  The  counsel  was,  in 
that  point,  deceived  by  his  authority  ;  his  conclusions  were,  as  they 
always  are,  just ;  but,  fortunately  for  the  prisoner,  his  premises 
were  false. 

The  court  took  time  to  consider. 


OPINION  OF  THE  COURT. 


19th  February,  1820. 
PRESENT  AS  BEFORE. 


His  Honour  the  Mayor  this  day  delivered  the  opinion  of  the 
Court. 

The  people  of  the  State  of  New -York 


vs. 

Robert  M,  Goodwin. 


On  the  7th  of  January  last,  the  grand  jury  of  this  court  presented 
an  indictment  of  Manslaughter,  against  Robert  M.  Goodwin,  the 
prisoner  at  the  bar,  accusing  him  with  having  feloniously  killed 
James%  Stoughton.  The  next  day  the  prisoner  was  arraigned  on 
that  indictment,  pleaded  not  guilty,  and  on  being  asked  if  he  was 
ready  for  his  trial,  he  answered  he  was  not.  An  application  was 
then  made  to  bail  the  prisoner.  The  court  intimated  their  opinion, 
that  it  was  not  of  course  to  bail  on  such  a  charge,  and  the  matter 
was  no  further  moved  at  that  term. 

At  an  early  day  in  this  term,  the  counsel  for  the  prisoner  moved 
that  his  trial  should  be  brought  on  in  the  course  of  the  term,  or  that 
he  should  be  discharged  ;  and  if  not  discharged,  that  he  should  at 
least  be  bailed.  \ 

On  that  occasion,  the  public  prosecutor  stated,  that  an  inquest 
had  been  found  against  the  prisoner  for  the  murder  of  James 
Stoughton  ;  the  person  who  by  the  indictment  for  manslaugh¬ 
ter  he  is  accused  of  having  feloniously  killed.  That  the  in¬ 
quest  had  been  by  the  coroner  put  on  the  files  of  this  court,  and 
that  it  was  intended  to  try  him  on  that  inquest  at  a  Court  of  Oyer 
and  Terminer,  which  would  be  held  in  this  city'  for  the  purpose, 
a9  soon  as  the  duties  of  the  judges-  of  the  Supreme  Court  as  mem¬ 
bers  of  the  Court  of  Errors,  and  of  the  Council  of  Revision,  now  in 
session  at  Albany,  would  permit  one  of  them  to  preside  at  an  Oyer 
and  Terminer  here.  That  on  this  account  he  avowed  that  it  was 
not  his  intention  to  try  the  prisoner  in  this  Court,  nor  would  he  con¬ 
sent  to  his  being  bailed  or  discharged.  The  court  declined  grant- 


29 


ins;  the  application  at  that  time,  but  consented,  at  the  request  of  the 
counsel,  to  hear  the  application  anew.  And  now  on  the  last  day  of 
the  next  term  after  his  indictment,  the  prisoner  applies  to  be  bailed 
on  the  charge  of  manslaughter. 

A  court  constituted  as  this  is,  ought,  in  my  opinion,  cautiously 
to  refrain  from  deciding  any  point  of  law  in  which  their  decision  is_ 
not  absolutely  necessary  to  dispose  of  the  case  immediately  before 
them.  We  may,  1  think,  give  our  judgment  on  the  present  appli¬ 
cation,  without  giving  any  opinion  as  to  many  of  the  important  points 
raised  on  the  learned  and  able  arguments  that  have  been  submitted 
to  the  court. 

1  shall,  in  the  first  instance,  consider  this  subject  as  if  it  were  to 
be  decided  on  the  supposition  that  the  prisoner  stood  before  this 
court  indicted  for  manslaughter  only  ;  and  shall  therefore  for  the 
present  put  out  of  view  every  other  circumstance.  The  question 
then  is,  whether  the  court  ought  in  this  indictment  for  manslaugh¬ 
ter,  as  a  matter  of  course,  merely  on  the  prisoner’s  application,  to 
admit  him  to  bail. 

The  power  of  the  court  to  bail  for  this  offence  under  any  circum¬ 
stances,  has  been  questioned  by  the  counsel  for  the  prosecution. 
But  it  seems  to  me  that  the  power  to  bail  must  be  incident  to  the 
power  to  hear  and  determine.  We  have  certainly  power  to  dis¬ 
charge  altogether.  It  is  expressly  given  to  us  by  statute,  under 
certain  circumstances,  and  without  statute,  it  necessarily  belongs, 
as  it  appears  to  me,  to  a  court  having  the  pow'er  to  try  as  in  all  ca¬ 
ses  to  which  such  power  extends.  If  we  have  the  power  to  grant 
a  gratuitous  discharge,  it  must  follow,  I  think,  that  we  have  power 
to  discharge  sub  modo.  If  we  may  discharge  without  bail,  a  fortiori 
we  may  discharge  upon  bail.  The  case  from  Salkeld,  which  upon 
its  being  first  read,  I  did  consider  in  opposition  to  this  position,  I 
think  has  been  satisfactorily  met  by  the  observations  of  the  defend¬ 
ant’s  counsel,  and  has  been  shown  to  be  reconcilable  with  what  I 
understand  to  be  the  law.  ( Lord  Moliun's  case,  Salk.  104.) 

But  I  should  wish  to  give  this  point  a  more  deliberate  examina¬ 
tion  before  I  venture  to  give  a  decisive  opinion  upon  it.  I  do  not 
mean  to  give  such  an  opinion  at  this  time,  because  I  believe  it  is 
not  necessary  that  I  should  ;  for  the  present  question  does  not  in 
my  mind  turn  upon  the  power  of  the  court.  It  is  enough  to  con¬ 
sider  whether,  supposing  the  court  has  a  discretionary  power  to 
bail,  they  ought  now  to  exercise  that  power. 

It  seems  to  be  admitted  that  where  a  person  is  charged  with  any 
felon,  above  the  degree  of  petit  larceny,  (as  to  which  there  is  a 
statutory  provision)  he,  cannot  demand  bail  as  of  course,  and  that 
the  co  rt  or  magistrates,  having  the  power,  are  to  bail  him  or  not  at 
their  discretion. 

Legs1  discretion  never  means,  either  in  criminal  or  civil  law, 
arbitrary  will. 

Legal  discretion  is  always  to  be  governed  or  directed  by  known 
and  established  rules,  and  in  truth  cannot  be  otherwise  applied  than 
to  decide  whether  facts  bring  the  case  within  the  operation  of  such 
rules. 


30 


1  he  well  established  rule  of  law  applicable  in  this  case  is,  that  a 
person  fully  and  explicitly  charged  with  a  felony  cannot  be  bailed, 
unless  there  be  sonrething  presented  in  opposition  to  the  charge, 
which  may  raise  a  presumption  in  favour  of  his  innocence  ;  or  at 
least  it  must  appear  indifferent  to  the  court  or  magistrate  called  on 
to  bail  him,  whether  he  be  guilty  or  not. 

It  is  unnecessary  to  recapitulate  the  authorities  which  have  been 
cited  to  this  effect.  It  has  been  the  law  of  England  and  of  this 
country  since  the  time  of  the  statutes  of  Edward  the  first.  No 
case  has  been  cited  to  the  contrary.  And  I  never  knew  of  any 
practice  of  this  court,  or  any  other,  that  violated  a  rule,  the  strict 
observance  of  which  appears  to  me  to  be  absolutely  necessary  to  a 
due  and  impartial  administration  of  law  ;  of  that  administration 
which  shall  put  the  poor  and  the  rich  on  an  equal  footing  in  a  court 
®f  justice. 

This  rule  is  not  disputed  by  the  counsel  for  the  prisoner  :  they 

contend,  however,  that  the  maxim  of  law  that  every  man  is  to  be 

.  .  . 

presumed  innocent  till  he  be  found  guilty,  applies  to  this  case  at 
this  time.  But  it  is  obvious  that  this  argument  would  lead  us  too 
far — for  if  it  would  now  apply  it  would  at  all  times  reach  every 
case.  And  if  it  is  always  to  be  adopted,  then  it  would  follow  that 
in  every  case  the  accused  must  be  let  to  bail.  The  truth  is,  that 
this  just  and  benign  principle  is  not  applicable,  except  when  the 
accused  is  on  his  trial  :  for  the  purposes  of  securing  his  person  to 
answer  to  a  direct  and  positive  charge,  made  in  due  form,  and  to 
bring  him  to  that  trial,  we  are  bound  to  treat  him  as  if  he  were 
guilty  :  at  least  we  must  do  so  until  some  matter  be  presented  in  his 
favour,  which  in  the  exercise  of  our  discretion  we  shall  judge  a 
presumption  of  his  innocence. 

In  this  case  nothing  of  that  nature  is  offered.  The  prisoner  is 
not  only  committed  on  a  charge  of  felony  fully  and  explicitly  ex¬ 
pressed  in  the  warrant  of  commitment,  but  he  stands  charged  with 
a  felony  of  manslaughter,  by  the  indictment  on  the  files  of  this 
court. 

It  appears  to  me  in  vain  to  say  that  the  public  prosecutor  is  to 
produce  further  evidence  of  the  guilt  of  the  accused,  than  the  com¬ 
mitment  or  indictment,  since  the  law  says  that  he  must  raise  a  pre¬ 
sumption  in  favour  of  his  own  innocence.  It  can  only  mean  that  he 
must  destroy  the  presumptions  which  must  necessarily  arise  against 
him  from  these  accusatory  documents. 

In  some  instances  indeed  the  magistrate  or  court  may  look  into 
the  testimony  on  which  the  accusation  is  founded;  and  if  it  affords 
the  presumption  in  favour  of  the  prisoner’s  innocence,  he  may  be 
bailed. 

A  second  ground  however  of  this  application  is,  that  the  trial  of 
the  prisoner  on  the  indictment  for  manslaughter  has  been  so  long 
delayed  that  he  is  entitled  to  be  bailed,  if  not  discharged. 

I  have  no  doubt  if  there  be  any  unreasonable  delay  in  the  pro¬ 
secution  of  an  indictment  which  this  court  may  try,  it  ought  to  in- 


31 


terpose  its  authority  and  relieve  the  accused  from  the  oppressioa 
of  an  unnecessary  and  unwarranted  imprisonment. 

We  are  then  to  inquire  whether  there  has  been  such  delay  in  this 
case. 

As  I  have  already  stated,  the  prisoner  was  indicted  and  arraigned 
the  last  term,  that  he  then  said  he  was  not  ready  for  trial,  and  at 
this  second  term  his  counsel  have  moved  for  his  trial,  which  the 
public  prosecutor  has  avowed  he  did  not  mean  to  bring  on. 

A  statute  of  this  state  provides,  that  if  any  person  indicted  shall 
not  be  brought  to  trial  at  the  second  term  of  the  sessions  after  the 
commitment,  he  shall  be  discharged  as  far  as  relates  to  any  treason 
or  felony  for  which  he  was  committed,  unless  a  satisfactory  cause 
be  shown  by  the  public  prosecutor  for  not  bringing  him  to  trial. 

The  application  to  the  court  is  not  to  discharge  the  prisoner,  but 
to  bail  him.  If  the  court  thought  him  entitled  to  his  discharge, 
they  could  not  refuse  to  admit  him  to  bail. 

Under  the  provision  of  this  statute,  the  prisoner  would  be  en¬ 
titled  to  his  discharge  unless  the  public  prosecutor  has  shown  satis¬ 
factory  cause  for  not  bringing  him  to  trial. 

The  only  cause  he  has  shown  is,  that  by  a  coroner’s  inquest  the 
prisoner  is  charged  with  murder  :  and  the  public  prosecutor  avows 
his  intention  to  arraign  the  prisoner  on  that  inquest  in  the  Oyer  and 
Terminer,  where  by  law  it  is  returnable;  and  which  court  has 
solely  jurisdiction  of  the  crime  which  it  charges. 

We  have  then  to  decide  whether  this  court  ought  to  consider 
the  existence  of  the  inquest  as  satisfactory  cause  for  not  now  putting 
the  prisoner  on  his  trial. 

This  inquisition  I  have  no  doubt  is  improperly  on  the  files  of 
this  court.  It  ought  to  be  in  the  hands  of  the  coroner  until  return¬ 
ed  pursuant  to  the  statute,  to  the  court  of  Oyer  and  Terminer.  Yet 
I  think  this  court  is  bound  to  take  notice  of  it.  We  may  consider 
it  as  presented  to  us  by  the  public  prosecutor  in  the  hands  of  the 
coroner ;  or  it  appears  to  me  we  are  bound  to  receive  the  repre¬ 
sentation  of  the  public  prosecutor  of  the  existence  of  the  inquisi¬ 
tion,  and  of  his  intention  to  proceed  upon  it.  Circumstances  may 
exist  when  we  should  be  obliged  to  accept  this  evidence  of  a  no  less 
solemn  and  important  fact,  as  to  which  I  do  not  know  how  otherwise 
we  could  obtain  information.  Suppose  that  the  prisoner  instead  of 
being  now  charged  by  a  coroner’s  inquest  with  murder,  had  at 
the  last  Oyer  and  Terminer  been  indicted  for  that  crime  ;  and  that 
the  last  grand  jury  of  this  court  had  notwithstanding  presented  the 
indictment  for  manslaughter  now  on  our  files  :  how  could  we  have 
obtained  knowledge  of  the  proceeding  in  the  Oyer  and  Terminer, 
Out  by  the  information  of  the  public  prosecutor  ?  At  any  rate  I  think 
'his  inquisition  is  so  before  us  as  that  we  are  bound  to  take  it  into 
)ur  consideration. 

Supposing  for  a  moment,  that  this  inquisition  is  equivalent  to  an 
ndictment,  and  that  the  prisoner  may  be  arraigned  and  convicted 
ipon  it  in  the  Oyer  and  Terminer  ;  then  can  this  court,  consistent 
vith  its  duty,  take  any  step,  or  pursue  any  course  which  might  in- 


32 


terfcre  with  that  jurisdiction  which  the  laws  of  our  country  have 
committed  to  a  higher  tribunal  ?  We  have  no  cognizance  of  the 
crime  ol'  murder.  Shall  we  then  adopt  measures  which  will  arro¬ 
gate  to  ourselves  the  disposition  of  an  accusation  on  which  it  be¬ 
longs  to  our  superiors  to  decide  ?  If  we  were  to  try  the  prisoner 
on  the  indictment  for  manslaughter,  unquestionably  we  should  put 
an  end  to  the  prosecution  for  murder — and  is  there  not  a  great  in¬ 
consistency  in  saying  that  this  inferior  tribunal  can  or  ought  to  pur¬ 
sue  such  a  course  as  to  take  to  itself  the  decision  of  a  matter  which 
does  not  beloug  to  it,  but  which,  by  the  constitution  and  laws  of 
our  country,  is  delegated  to  a  superior  court  ?  If  the  inquisition  be 
equivalent  to  an  indictment,  then,  in  virtue  of  the  inquisition,  the 
case  of  the  prisoner  is  as  much  attached  to  the  Oyer  and  Terminer 
as  if  there  was  an  indictment  of  that  court  to  the  same  effect.  Sup¬ 
pose,  then,  that  after  an  indictment  in  the  Oyer  and  Terminer,  a 
grand  jury  in  this  court  were  to  find  a  bill  on  the  same  facts  for 
murder  ;  it  seems  to  me,  that  every  one  will  admit  that  it  would  be 
absurd  to  say,  that  because  the  session  grand  jury  had  chosen  to  hod 
a  bill  for  manslaughter,  that  we  could  and  ought  to  proceed  on  that 
bill,  and  thereby  oust  the  Oyer  and  Terminer  of  the  trial  and  de¬ 
cision  of  the  cause,-  If  this  doctrine  were  to  prevail,  it  would  utter¬ 
ly  confound  all  jurisdictions.  I  cannot  see  why  the  indictment  for 
manslaughter  should  be  allowed  to  interfere  with  the  inquest  for 
murder,  more  than  if  a  grand  jury,  after  having  found  an  indictment 
for  lilrceny  in  this  court,  should  afterwards  land  an  indictment  for 
trespass  or,  the  same  facts,  the  latter  should  he  allowed  to  interfere 
with  the  former. 

It  is  admitted,  that  in  England,  the  inquest  is  equivalent  to  an  in¬ 
dictment  ;  hut  it  is  said,  that  we  ought  not  to  consider  it  so.  he-  I 
cause  by  the  constitution  of  the  United  States/ no  man  can  be  held 
to  answer  upon  it.  This  is  a  question  1  do  not  mean  to  take  upon  | 
me  to  decide.  The  law  of  our  state,  w  hich  has  been  revised  seve-  | 
ral  times  since  the  adoption  of  the  constitution,  not  obly  points  it 
out  as  a  mode  of  prosecution,  but  provides  that  the  justices  of  Oyer 
and  Terminer  shall  proceed  thereon  :  and  it  is  admitted  that  in  seve¬ 
ral,  at  least  in  more  than  one  instance  in  this  state,  persons  have 
been  put  to  answer  on  coroners’  inquests.  Would  it  not  then  he 
a  most  Unwarrantable  presumption  in  this  court  to  act  on  their  own 
opinion,  when  that  opinion  was  in  opposition  to  repeated  legislative 
acts,  and  to  the  decisions  of  tribunals  to  w  hich  we  are  unquestiona¬ 
bly  subordinate  ?  We  have  been  asked  if  the  document  now  pre¬ 
sented  to  us,  and  which  purports  to  be  an  inquest  of  the  coroner, 
were  manifestly  defective  ;  as  for  instance,  if  it  should  appear  to 
have  been  the  finding  of  only  eleven  jurors,  if  it  should  want  seals 
or  the  name  of  the  coroner,  yet  would  we  then  suffer  it  to  controul 
us  iu  the  administration  of  justice?  I  answer,  certainly  not.  l'oi 
then  it  would  be  no  inquest.  It  would  be  only  requiring  us  to  open 
our  eyes  to  see  that  it  was  not ;  and  in  determining  to  disregard  it, 
we  should  not  be  exercising  the  highest  judicial  function,  and  in  op 
position  to  the  legislature,  and  superior  courts,  deciding  a  grea  1 


33 


sonstitutional  question  which,  in  my  mind,  belongs  to  another  tribu- 
nal. 

I  am  therefore  of  opinion,  that  when  the  public  prosecutor  show- 
ed  us  the  coroner’s  inquest,  accusing  the  prisoner  of  the  murder 
of  the  same  person  whom  he  is  charged  by  the  indictment  on  our 
files  with  feloniously  lulling,  he  has  shown  sufficient  cause  for  not 
bringing  the  prisoner  to  trial,  and  that  we  ought  not,  whatever  our 
power  may  be,  as  to  the  manslaughter,  at  this  time,  either  to  bail 
or  discharge  him. 

I  beg  it  to  be  observed  that  my  opinion  is,  that  we  ought  now ,  at 
this  time ,  to  receive  the  inquest  as  a  satisfactory  cause,  shown  by 
the  public  prosecutor,  for  the  delay  which  has  taken  place.  I  by 
no  means  intended  to  say  that  it  should  always  be  so  considered.  I 
think  this  court,  nor  no  other  court,  should  leave  the  prisoner  at 
the  mercy  of  the  public  prosecutor.  We  never  will  suffer  the  du¬ 
ration  of  his  imprisonment  to  depend  on  the  pleasure  of  the  attor¬ 
ney  for  the  people.  Our  laws  have  taken  good  care  to  guard  against 
oppression  by  their  administrators,  and  it  is  our  duty  to  see  that 
their  provisions  in  favour  of  humanity,  and  the  liberty  of  the  citi¬ 
zens,  are  duly  enforced.  If,  therefore,  it  should  appear  to  us  that 
there  is  any  wanton,  or  even  unnecessary  delay  on  the  part  of  the 
public  officer  ;  if,  after  there  has  been  an  Oyer  and  Terminer  in 
this  county,  no  measures  should  be  taken  on  the  inquisition,  or  if 
the  prisoner  could  justly  complain  of  delay  in  the  appointment  of 
such  a  court,  then  I  think  an  application  like  the  present  would  call 
upon  us  to  decide  as  to  the  extent  of  our  powers,  and  w  hether  we 
would  not  exert  them  for  the  relief  of  the  prisoner.  The  opinion 
now  delivered,  goes  no  farther  than  to  decide  that  if  we  may,  at  our 
discretion,  bail  the  prisoner  on  an  indictment  for  manslaughter,  we 
do  not  think  it  would  be  a  proper  exercise  of  that  discretion,  to  bail 
him  under  existing  circumstances.  The  application  is  therefore 
refused. 

The  mayor  then  stated  that  the  opinion  just  delivered,  must  be 
no  farther  considered  as  the  opinion  of  the  court,  than  as  it  ex¬ 
pressed  a  determination  not  to  admit  the  prisoner  to  bail  at  pre¬ 
sent. 


* 


TRIAL,  &e. 


a  Court  of  General  Sessions  of  the  Peace ,  hohlen  in  and  for  the 
City  and  County  of  New- York,  at  the  City  Hall  of  the  said  City, 
on  Tuesday  the  14 th  day  of  March,  in  the  year  of  our  Lord  1820  : 


PRESENT, 

The  Honourable  Cadwallader  D.  Colden,^ 

Mayor  of  the  City  of  New- York  ;  f  Justices  of  the 
George  B.  Thorp,  Esquire,  ^  Aldermen  oft  Sessions. 
Stephen  Allen,  Esquire,  $  the  said  city ;  ) 

John  W.  Wyman,  Esq.  Clerk. 


The  People  of  the 
State  of  New-York 

vs. 

Robert  AI.  Goodwin. 


On  Trial,  on  an  Indictment  for  Manslaugh¬ 
ter,  in  killing  James  Stoughton,  Esquire, 
found  on  the  8th  January  last. 


Counsel  for  the  people. 

Messrs.  Van  Wyck,  Blake,  Griffin,  and  Wells. 


Counsel  for  the  prisoner. 

Messrs.  Hoffman,  Emmet,  D.  B.  Ogden,  S.  Price,  Munro,  and 
f.  A.  Hamilton. 


At  a  quarter  before  twelve,  the  court  was  opened,  with  the 
isual  proclamation,  and  the  district  attorney  had  leave  to  proceed 
vith  the  trial  of  this  cause. 

Clerk.  Sheriff  of  the  city  and  county  of  New-York,  put  Robert 
I.  Goodwin  to  the  bar. 

James  L.  Bell ,  esquire,  the  sheriff,  then  put  the  prisoner  to  the 
a‘r ;  his  brother,  capt.  Ridgely,  and  Samuel  Corp,  esq.  a  friend 
f  his,  sitting  below  and  in  front  of  him. 

Crier.  Hear  ye,  hear  ye,  hear  ye!  You  good  men  who  are 
’turned  as  petit  jurors  at  this  Court  of  General  Sessions  of  the 
eace,  now  held  in  and  for  the  city  and  county  of  New-York, 
lswer  to  your  names,  every  one  at  the  first  call,  and  save  your 
aes. 

The  Clerk  then  called  over  the  panel  of  jurors,  and  all  appeared 
feept  one,  on  whom  the  court  imposed  a  fine  of  $25. 

Clerk.  Robert  M.  Goodwin,  prisoner  at  the  bar,  those  good 
en,  whose  names  you  have  just  heard  called,  and  who  now  appear. 


36 


are  those  who  are  to  pass  between  you  and  your  country  on  your 
trial.  If  therefore  you  will  challenge  them,  or  any  of  them,  your 
time  to  challenge  them  will  be  as  they  come  to  the  book  to  be 
sworn,  and  before  they  are  sworn,  and  then  you  will  be  heard. 

The  Clerk  then  proceeded  to  ballot  for  the  jury,  and  the  name  of 
Charles  Swan  was  drawn  from  the  box  before  it  was  discovered, 
and  observed  by  Mr.  Wyman,  that  proclamation  for  the  trial  had 
not  been  made.  And  the  question  arose  whether  the  ballot  of 
Mr.  Swan  could  be  returned  to  the  box  again. 

Emmet.  1  humbly  conceive,  if  the  court  please,  that  when  a 
juror’s  name  is  drawn  from  the  box,  the  ballot  cannot  be  returned. 

'Jhe  Mayor.  I  believe  you  are  correct. 

Van  Wyck.  We  consent  that  Mr.  Swan  be  sworn  one  of  the 
jurors. 

The  Mayor.  Proceed,  Mr.  Clerk. 

Clerk.  Crier,  make  proclamation. 

Crier.  Hear  ye,  hear  ye,  hear  ye  !  You  good  men  who  are 
returned  to  inquire  between  the  People  of  the  State  of  New-York, 
and  Robert  M.  Goodwin,  the  prisoner  at  the  bar,  answer  to  your 
names,  every  one  at  the  first  call,  and  save  your  fines. 

Van  Wyck  suggested,  as  this  had  been  a  case  already  so  much 
agitated,  and  likely  to  be  so  throughout,  whether  it  would  not  be 
well  to  agree  that  the  jurors  should  be  asked,  each  as  he  came 
severally  to  the  book,  whether  he  had  formed  any  opinion  upon 
the  merits  of  the  case. 

S.  Trice  said  it  was  no  less  the  wish  of  the  counsel  for  the  prisoner. 

The  .Mayor.  There  is  a  preliminary  question  of  practice,  upon 
which  I  should  like  to  hear  the  counsel,  unless  they  can  agree  upon  , 
it.  The  English  law  and  ours  differ  upon  this  subject.  This  is,  1 
think,  a  principal  challenge  for  cause,  and  the  juror  is  called  anr 
asked  whether  he  has  formed  an  opinion.  If  it  be  indeed  a  prin 
cipal  challenge  for  cause,  it  is  to  be  tried  and  decided  by  the  court 
It  may  be  asked,  whether  a  juror  ought  to  be  allowed  to  get  rid  o 
bis  duty  in  such  a  grave  and  delicate  case  by  merely  answering  ir 
the  affirmative.  I  find  this  practice  unsettled.  In  the  case  of  Col 
Burr,  the  jury  were  asked  this  question,  but  not  upon  oath.  In  th< 
case  of  Fry,  it  was  not  upon  oath.  In  the  case  of  Selfridge,  it  wa: 
upon  oath.  It  is  a  sort  of  trial  then  upon  testimony.  If,  however 
it  be  a  challenge  for  favour,  how  is  it  to  be  examined  upon  oath 
The  practice  now  to  settle  is,  whether,  considering  it  a  challong' 
for  favour,  the  juror  is  or  is  not  to  be  put  to  answer  upon  his  oath 

Emmet.  It  would  be  our  wish  that  every  juror  should  be  exa 
mined  upon  oath.  If  we  have  any  objection,  it  is  this  :  that  w 
might  choose  to  try  the  question  by  testimony  ;  the  import  of  tha 
testimony  would  be,  as  to  the  competency  of  the  juror,  the  sam 
as  his  own  oath  :  and  it  is  proper  that  it  should  be  put  under  oatl 
to  prevent  his  evading,  and  giving,  perhaps,  such  an  answer  as  1) 
would  not  give  under  that  solemnity.  Might  we  not  make  it  a  gf 
neral  rule,  that  each  juror  might  be  asked  upon  his  oath,  unles 


37 


where  the  counsel  on  either  side  should  say,  that  they  wished  to 
examine  witnesses. 

The  Mayor.  This  is,  I  think,  a  challenge  propter  affectum.  If  so, 
let  us  first  see  whether  it  is  proper  to  put  any  question  to  the  juror 
upon  oath. 

Emmet.  It  appears  to  rae,  that  in  those  cases  where  the  oath  has 
been  dispensed  with,  it  has  rather  been  a  matter  of  accommodation 
than  of  strict  practice  ;  and,  I  think,  so  important  a  fact  as  the  pre¬ 
possession  of  a  juror’s  mind,  ought  not  to  be  decided  but  upon 
the  oath  of  somebody. 

The  .Mayor.  Let  the  juror  then,  be  examined  upon  his  oath. 

It  now  became  a  question  what  the  form  of  that  oath  should  be, 
and  the  mayor  proposed  this  form  : 

“  You  do  swear  that  you  w  ill  make  true  answer  to  such  ques¬ 
tions  as  shall  be  put  to  you,  touching  your  competency  as  an  im¬ 
partial  juror,  between  the  People  of  the  state  of  New-York  and 
Kobert  M.  Goodwin,  the  prisoner  at  the  bar” — so  help  you  God. 

Van  Wyck.  1  only  require  the  general  question,  and  have  nothing 
to  do  with  consent.  But  the  court  has  decided  it,  and  it  is  my  duty 
to  submit. 

The  Mayor  then,  at  the  desire  of  the  prisoner’s  counsel,  asked 
the  juror  if  he  had  formed  an  opinion,  &c. 

Juror.  I  have  formed  an  opinion,  but  from  rumour  merely. 

Griffin.  How  fir  can  that  circumstance  create  incompetency  in 
the  juror  ? 

The  Mayor.  This  is  the  very  objection  taken  in  the  case  of  Fry  ; 
a  new  trial  was  there  granted,  because  one  of  the  jurors  had  said 
that  the  prisoner  ought  to  be  hanged.  And,  it  seems  to  me,  it  is  all 
one  from  w'hat  cause  he  has  made  up  his  mind.  The  true  question 
is,  is  he  an  impartial  juror?  and  1  do  not  think  he  is.  And  after 
consulting  with  the  aldermen,  his  honour  the  mayor  stated  it  to  be 
the  opinion  of  the  court  that  he  was  incompetent.  And  he  was  set 
aside. 

Then  James  Glass  was  put  to  the  book,  and  asked  by  the  mayor, 
“  Have  you  formed  an  opinion  of  the  guilt  or  innocence  of  this  pri¬ 
soner  ?” 

Juror.  I  have  formed  none.  I  never  saw  either  of  the  gentle¬ 
men,  nor  have  any  knowledge  whatsoever  of  their  affair. 

The  Mayor.  It  is  enough,  sir  ;  you  need  not  go  further  than  the 
simple  answer  to  the  question. 

Mr.  Glass  was  then  sworn. 

Garrit  Van  Cleef  was  next  called. 

S.  Price.  In  this  instance,  we  will  dispense  with  the  oath  ;  but 
if  the  juror  chooses  to  be  on  the  jury,  we  will  formally  challenge 
him,  and  endeavour  to  prove  his  expressions. 

Van  Wyck.  I  must  consider  him  a  competent  juror,  knowing 
nothing  to  the  contrary.  The  gentlemen  must  take  the  one  or  the 
other  mode  of  proceeding. 

The  Mayor.  The  matter  may  be  tried  either  way  ;  for  the  juror 
is  called  by  neither  party. 


38 


Van  Wyck.  I  cannot  agree  to  that.  The  juror  comes  here  to  try 
the  cause,  by  compulsion  of  the  process  of  the  law  ;  and  he 
ought  not  to  be  put  to  the  exposure  of  having  witnesses  called  from 
every  quarter  to  prove  his  partiality,  after  he  has  sworn  that 
he  was  unbiassed  ;  he  being  totally  unprepared  to  vindicate  his 
own  veracity  by  any  further  proof,  such  pretence  would  be 
enough  to  make  any  juror  shrink  from  appearing  in  a  court. 

Price.  The  rule  adopted  in  the  case  of  Thorn,  was  to  permit  the 
question  to  be  asked,  and  then  the  fact  to  be  afterwards  fully  tried. 

Htfflman.  We  do  not  wish  to  be  precluded  from  testimony,  and 
if  asking  the  juror  was  to  preclude  us,  we  would  not  have  the 
question  asked.  If  he  should  admit,  however,  that  he  had  formed 
an  opinion,  it  would  save  the  time  of  the  court ;  but  if  he  deny  it, 
the  triers  appointed  may  afterwards  try  it.  1  apprehend,  the  juror, 
if  the  question  was  put,  would  admit  that  he  had  used  very  strong 
expressions  of  a  formed  opinion. 

IVelis.  In  the  case  of  witnesses  upon  their  voire  dire,  if  you  once 
ask  the  witness,  you  cannot  afterwards  contradict  him.  Yet  here, 
after  the  juror  has  said  that  he  has  no  opiniou  formed,  nor  made 
any  declarations,  the  gentlemen  would  call  perhaps  witnesses  to 
confront  him.  1  think  they  must  take  the  answer,  since  they  ask 
the  question,  and  not  involve  the  juror  as  a  party  in  such  a  con¬ 
troversy. 

Hoffman.  We  all  know,  that  in  such  a  case  as  this,  it  is  almost 
impossible  to  have  an  indifferent  jury.  In  Smith  and  Ogden,  a  ju¬ 
ror  was  put  upon  his  oath,  touching  his  expressions  in  a  tavern  ; 
two  other  witnesses  were  called,  (l\Ir.  Ludlow  I  remember 
was  one)  and  their  testimony  was  submitted  to  the  triers.  The 
objection  is  but  visionary  :  we  are  not  to  inquire  into  the  veraci¬ 
ty  of  jurors,  but  whether  they  are  competent.  Would  the  court 
ever  preclude  testimony  to  prevent  a  partial  juror  from  silting  on 
the  trial  of  a  prisoner  ?  A  juror  may  have  an  inclination  to  acquit 
from  favour  ;  he  may  have  a  corrupt  desire  to  convict  from  preju¬ 
dice  or  malice.  Why  then  introduce  the  technical  rules  respect¬ 
ing  witnesses,  which  cannot  go  to  the  true  merits  of  the  question  ? 
The  court,  if  witnesses  should  appear  to  contradict  the  assertion  of 
the  juror,  may  put  all  necessary  questions  lo  ascertain  the  truth. 

The  Mayor.  It  is  incumbent  upon  the  court,  in  every  case  of  doubt, 
not  to  decide  against  the  prisoner.  The  objection  is,  that  the  ju¬ 
ror  comes  not  as  a  party  to  a  suit,  and  that  his  character  might  be 
affected  by  involving  him  in  a  controversy  for  which  he  was  un¬ 
prepared  ;  but  a  juror  is  not  supposed  more  indifferent  to  the 
parlies,  than  a  witness  is  supposed  to  be  ;  yet  there  is  no  objec¬ 
tion  to  the  contradiction  of  a  witness  by  evidence.  A  juror  is  not 
called  by  either  party,  nor  the  question  put  by  either  party,  but  rather 
by  the  court,  for  the  fair  administration  of  justice.  As  1  have  not 
had  time  to  examine  this  question,  and  as  1  have  doubts,  I  would 
take  the  safer  course,  and  decide  for  the  prisoner.  And — 

On  consulting  with  the  Aldermen,  the  Mayor  declared  this  to  be 
the  opinion  of  the  majority  of  the  court. 


39 


Price  than  asked  the  juror  if  he  had  expressed  any  opinion. 

Wells  prayed  that  the  court  might  itself  conduct  the  inquiry. 

The  Mayor.  Have  you  any  opinion  at  this  moment  as  to  the  guilt 
or  innocence  of  the  prisoner  ? 

Juror.  1  have  not.  I  cannot  say  any  thing  about  it  till  I  hear  his 
witnesses. 

Mayor.  Have  you  any  bias  or  prejudice  for  or  against  him  ? 

The  juror  answered  that  he  had  none,  and  was  thereupon  sworn. 
The  next  called  was  John  Stewart ,  jun.  who  was  in  like  manner 
sworn  to  make  true  answer. 

The  Mayor.  Have  you  made  up  any  opinion  in  this  case  ? 

Juror.  1  have,  sir.  I  was  near  where  the  affray  happened,  and 
heard  all  the  evidence  from  one  of  the  coroner’s  jury  ;  and  think 
myself  incompetent  to  be  a  juror  on  the  trial  of  the  prisoner. 

He  was  set  aside. 

Mr.  Judah  now  appeared,  who  had  been  excused  from  indisposi¬ 
tion,  and  was  absent  when  called,  and  was  challenged  by  Mr.  Price. 
Fan  Wyck.  Let  the  gentlemen  state  the  cause  of  their  challenge. 
Price.  Have  1  not  the  right  to  ask  him  now  whether  he  has  made 
up  an  opinion  ? 

Wells.  This  juror  has  been  now  regularly  challenged,  and  the 
counsel  must  proceed  regularly. 

The  Mayor.  These  are  all,  I  take  it,  principal  challenges  to  the 
favour. 

Fan  Wyck.  Challenges  to  the  favour,  as  for  relationship  or  any 
such  cause,  are  principal  challenges,  and  ought  to  be  distinctly 
stated,  that  they  may  be  denied  or  demurred  to.  The  counsel 
should  state  his  cause  of  challenge. 

Price.  We  challenge  this  juror  upon  the  ground  of  having  ex¬ 
pressed  an  opinion. 

The  Mayor.  That  is  a  proper  challenge,  and  the  question  is  to  he 
put  to  him  by  the  court,  upon  oath. 

The  juror  was  sworn  upon  his  voire  dire ,  and  the  mayor  asked 
him  if  he  had  formed  any  opinion. 

The  Juror.  From  conversation  with  some  of  the  grand  jury  after 
they  broke  up,  I  was  led  to  form  an  unfavourable  opinion. 

[Quere,  whether  this  witness  might  not  have  meant  the  coroner’s 
iury,  grand  jurors  being  sworn  to  keep  their  counsel  and  that  of 
their  brethren  !] 

The  proceedings  were  suspended  for  a  short  interval  by  the 
coming  of  the  grand  jury  into  court.  When  they  retired,  Mr.  Fan 
Wyck  observed  that  he  would  henceforth  leave  the  gentlemen  on 
;he  other  side  to  challenge  as  they  chose,  and  should  take  no  fat¬ 
her  exceptions. 

John  H.  Hieman  was  then  sworn  on  the  voire  dire,  and  the  mayor 
>ut  the  same  question  to  him,  viz.  whether  he  had  formed  any 
ipinion  on  the  merits  of  the  question,  or  the  guilt  or  innocence  of 
he  prisoner.  The  juror  answering  in  the  negative,  was  sworn  in 
hief  as  a  juror. 


Israel  Horsejield  was  sworn  on  the  voire  dire ,  and  the  same  ques¬ 
tion  put  to  him  by  the  mayor. 

Juror.  According  to  the  out-door  rumours,  my  opinion  was  un¬ 
favourable  to  the  prisoner,  but  I  have  formed  no  fixed  opinion. 

Emmet  prayed  that  the  question  might  hereafter  be  asked  in  the 
words  used  in  Self  ridge’s  trial  :  “  Have  you  made  up  your  minds  V 
(See  the  trial,  p.  9.) 

It  was  then  agreed  that  the  clerk  take  the  book  and  ask  the  tw* 
following  questions  as  there  propounded  : 

1st.  “  Have  you  heard  anything  of  this  case,  so  as  to  have  made  up 
your  mind  ?” 

2d.  “  Do  you  feel  any  bias  or  prejudice  for  or  against  the  prisoner 
*t  the  bar?” 

The  juror  answered  that  he  had  heard  nothing  but  the  out-door 
rumours,  and  felt  no  bias  for  or  against  the  prisoner.  (Sworn  of 
the  jury.) 

Charles  Gordon  sworn  on  his  voire  dire  to  make  true  answer,  kc. 
to  the  same  questions,  returned  the  like  answers,  that  lie  had  form¬ 
ed  no  opinion  and  felt  no  bias  ;  and  was  sworn  of  the  jury. 

Joseph  M.  Clark,  James  Iiallet,  Jason  M.  Bass,  and  Peter  Crarv- 
buck,  were  in  like  manner  sworn  to  make  true  answers,  and  to  the 
same  questions  returned  like  answers,  and  were  in  like  manner 
sworn  of  the  jury. 

James  Segoine  sworn  on  his  voire  dire,  and  questioned,  said  he  had 
eertainly  given  his  opinion. 

The  Mayor.  This  comes  within  the  rule  laid  down.  He  has 
given,  and  therefore  made  up  his  opinion.  He  was  set  aside. 

John  Thompson  on  his  voire  dire,  answered  both  questions  in  the 
negative,  and  was  sworn  of  the  jury. 

John  Redman  was  in  like  manner  examined,  and  on  like  answers, 
sworn  of  the  jury. 

Price  now  observed  to  the  court,  that  if  the  same  questions  had 
been  put  to  Mr.  Seaman,  and  another  gentleman  first  sworn,  they 
would  have  answered  as  those  did  that  had  been  set  aside. 

The  Mayor.  We  cannot  try  those  challenges  over  again,  that  ii 
most  certain.  This  rule  by  which  we  have  been  proceeding,  was 
laid  down  at  the  suggestion  of  the  prisoner’s  counsel. 

John  Redman  and  John  Fanderpool  were  both  sworn  and  examin¬ 
ed  on  their  voire  dire,  and  answering  distinctly  in  the  negative  to 
both  questions,  were  sworn  of  the  jury.  And  now  there  was  a  full 
jury  sworn,  and  the  following  composed  their  panel  : 

Clerk.  Gentlemen  of  the  jury,  answer  to  your  names  as  they  are 
oalled.  Crier,  count  them. 


James  Glass, 
Garrit  Van  Cleef, 
James  Iiallet, 
Jason  M.  Bass, 
John  II.  Seaman 
Isruel  Horse  field. 


Charles  Gordon, 
Joseph  M.  Clark , 
Peter  Crawbuck, 
John  Thompson, 
John  Redman, 
J«hn  Fanderpool 


41 


The  jurors  all  answering  to  their  names,  and  being  duly  empan¬ 
elled,  the  mayor  informed  those  of  the  general  panel  that  they 
were  discharged;  and  stated  to  the  gentlemen  just  now  sworn  in, 
that  the  court  had  heard  of  a  great  number  of  witnesses,  40,  50,  or 
perhaps  60,  that  might  be  examined  ;  that  it  was  impossible  to  sup¬ 
pose  they  could  all  be  examined,  and  the  trial  concluded  in  the  course 
of  one  day,  and  that  there  was  reason  to  apprehend  that  several  days 
would  be  consumed  in  the  proceedings  :  that  the  jurors,  there¬ 
fore,  might  take  the  opportunity  of  informing  their  families  of  this 
circumstance,  by  means  of  the  others  of  the  panel,  who  were  per¬ 
mitted  to  go  home. 

The  jurors  then  asked  permission  to  go  down  stairs  for  a  short 
time,  which  was  consented  to  on  both  sides,  two  officers  being 
sworn  to  attend  them  ;  and  on  their  return  into  court,  their  names 
were  again  called  over,  and  all  again  answered  to  their  names. 

Clerk.  Robert  M.  Goodwin,  prisoner  at  the  bar,  hold  up  your 
right  hand.  Take  it  down.  Gentlemen  of  the  jury,  look  upon  the 
prisoner  and  hearken  to  his  charge.  He  stands  indicted  as  follows  : 

The  clerk  then  read  the  following 

INDICTMENT. 

City  and  County  of  New-York,  ss. 

The  Jurors  of  the  people  of  the  state  of  New-York,  in  and  for 
the  body  of  the  city  and  county  of  New-York,  upon  their  oath, 
Present  :  That  Robert  M.  Goodwin,  late  of  the  first  ward  of  the 
citv  of  New-York,  in  the  county  of  New-York,  gentleman,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and  se¬ 
duced  by  the  instigation  of  the  devil,  on  the  twenty-first  day  of 
December,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  nineteen,  with  force  and  arms,  at  the  ward,  city  and  county 
aforesaid,  in  and  upon  one  James  Stoughton,  in  the  peace  of  God 
and  of  the  said  people  then  and  there  being,  feloniously  and  in  the 
fury  of  his  mind  did  make  an  assault :  and  that  the  said  Robert  M. 
Goodwin,  with  a  certain  drawn  sword  made  of  iron  and  steel ,  and  of 
the  value  of  one  dollar,  which  he,  the  said  Robert  M.  Goodwin,  in 
his  right  hand  then  and  there  had  and  held,  hini,  the  said  James 
Stoughton,  in  and  upon  the  left  side,  near  the  ninth  rib,  of  him,  the 
said  James  Stoughton,  then  and  there  feloniously,  and  of  the  fury 
pf  his  mind,  did  strike,  thrust,  stab,  and  penetrate,  giving  unto  the 
said  James  Stoughton,  then  and  there,  with  the  drawn  sword  afore¬ 
said,  in  and  upon  the  left  side  of  him,  the  said  James  Stoughton, 
iear  the  ninth  rib  of  him,  the  said  James  Stoughton,  one  mortal 
vound  of  the  breadth  of  one  inch  and  of  the  depth  of  eight 
nches,  of  which  said  mortal  wound  he,  the  said  James  Stoughton, 
hen  and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
heir  oath  aforesaid,  do  say  :  That  the  said  Robert  M.  Goodwin, 
dm,  the  said  James  Stoughton,  in  manner  and  by  the  means  afore- 
aid,  feloniously,  and  in  the  fury  of  his  mind,  did,  then  and  there, 
ill  and  slay,  against  the  peace  of  the  people  of  the  state  of  New¬ 
ark  and  their  dignity. 


6 


42 


And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  farther 
present :  That  the  said  Robert  M.  Goodwin,  afterwards,  to  wit,  on 
the  same  day  and  year  aforesaid,  at  the  city  and  county  of  New- 
York  aforesaid,  and  at  the  ward  aforesaid,  not  having  the  fear  of 
God  before  his  eyes,  but  being  moved  and  seduced  by  the  instiga* 
tion  of  the  devil,  with  force  and  arms,  in  and  upon  the  said  James 
Stoughton,  in  the  peace  ofGod  and  the  said  people  then  and  there  ; 
being,  feloniously,  and  in  the  fury  of  his  mind,  did  make  an  assault ; 
and  that  the  said  Robert  M,  Goodwin,  with  a  certain  drawn  dagger 
made  of  iron  and  steel ,  of  the  value  of  one  dollar,  which  he,  the 
said  Robert  M.  Goodwin,  in  his  right  hand  then  and  there  had  and 
held,  him,  the  said  James  Stoughton,  in  and  upon  the  left  side,  near 
the  ninth  rib  of  him,  the  said  James  Stoughton,  then  and  there  felo¬ 
niously,  and  of  the  fury  of  his  mind,  did  strike,  thrust,  stab,  and 
penetrate,  giving  unto  the  said  James  Stoughton  then  and  there, 
with  the  drawn  dagger  aforesaid,  in  and  upon  the  left  side  of  him, 
the  said  James  Stoughton,  near  the  ninth  rib  of  him,  the  said  James 
Stoughton,  one  mortal  wound,  of  the  breadth  of  one  inch,  and  of 
the  depth  of  eight  inches  ;  of  which  said  mortal  wound  he,  the 
said  James  Stoughton,  then  and  there  instantly  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
Robert  M.  Goodwin,  him,  the  said  James  Stoughton,  in  manner,  and 
by  the  means  last  aforesaid,  feloniously,  and  in  the  fury  of  bis  mind, 
did  kill  and  slay,  against  the  peace  of  the  people  of  the  state  of 
New-York  and  their  dignity. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present:  That  the  said  RobertxM.  Goodwin,  afterwards,  to  wit,  on 
the  said  twenty-first  day  of  December,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  nineteen,  at  the  city  and  county  ot 
New-York  aforesaid,  and  at  the  ward  aforesaid,  not  having  the  fear  i 
of  God  before  his  eyes,  but  being  moved  and  seduced  by  the  insti¬ 
gation  of  the  devil,  with  force  and  arms,  in  and  upon  the  said  James 
Stoughton,  in  the  peace  of  God  and  of  the  said  people  then  and 
there  being,  feloniously,  and  in  the  fury  of  his  mind,  did  make  au 
assault.  And  that  the  said  Robert  1\I.  Goodwin,  with  a  certain 
weapon,  the  blade  of  which  was  made  of  iron  and  steel ,  and  commonly  , 
called  a  swordcane,  and  of  the  value  of  one  dollar,  which  he,  the 
said  Robert  M.  Goodw  in,  in  his  right  hand  then  and  there  bad  a«d 
held,  him  the  said  James  Stoughton,  in  and  upon  the  left  side,  neai 
the  ninth  rib  of  him,  the  said  James  Stoughton,  then  and  there  felo¬ 
niously,  and  of  the  fury  of  his  mind,  did  strike,  thrust,  stab,  anc 
penetrate  ;  giving  unto  the  said  James  Stoughton,  then  and  there 
with  the  said  last-mentioned  weapon  aforesaid,  in  and  upon  the  let 
side  of  him,  the  said  James  Stoughton,  near  the  ninth  rib  of  him,  the  l 
Said  James  Stoughton,  one  mortal  wound  of  the  breadth  of  one  inch 
and  of  the  depth  of  eight  iuches,  of  which  said  mortal  wound  he  I 
the  said  James  Stoughton,  then  and  there  instantly  died.  And  s<  \ 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  :  That  th» 
said  Robert  M.  Goodwin,  him,  the  said  James  Stoughton,  in  mannei  j 
and  by  the  means  last  aforesaid,  feloniously,  and  in  the  fury  of  hit 


43 


mind,  did  kill  and  slay,  against  the  peace  of  the  people  of  the  state 
of  Nevv-York  and  their  dignity. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present :  That  the  said  Robert  M.  Goodwin,  afterwards,  to  wit,  on 
the  said  twenty-first  day  of  December,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  nineteen,  at  the  city  and  county  of 
New-York  aforesaid,  and  at  the  ward  aforesaid,  not  having  the  fear 
of  God  before  his  eyes,  but  being  moved  and  seduced  by  the  insti¬ 
gation  of  the  devil,  with  force  and  arms,  in  and  upon  the  said  James 
Stoughton,  in  the  peace  of  God  and  of  the  said  people  then  and 
there  being,  feloniously,  and  in  the  furv  of  his  mind,  did  make  an 
assault.  And  that  the  said  Robert  M.  Goodwin,  with  a  certain 
drawn  sword,  being  part  of  a  swordcane,  and  made  of  iron  and  steel. 
and  of  the  value  of  one  dollar,  which  he  the  said  Robert  M.  Good¬ 
win  in  his  right  hand  then  and  there  had  and  held,  him,  the  said 
James  Stoughton,  in  and  upon  the  left  side,  near  the  ninth  rib  of 
aim,  the  said  James  Stoughton,  then  and  there,  feloniously,  and  of 
he  fury  of  hi?  mind,  did  strike,  thrust,  stab,  and  penetrate  ;  giving 
mto  the  said  James  Stoughton,  then  and  there,  with  the  said  last- 
nentioned  weapon  aforesaid,  in  and  upon  the  left  side  of  him,  the  said 
bunes  Stoughton,  near  the  ninth  rib  of  him  the  said  James  Stough- 
on,  one  mortal  wound  of  the  breadth  of  one  inch,  and  of  the  depth 
>f  eight  inches  ;  of  which  said  mortal  wound  he,  the  said  James 
Stoughton,  then  and  there  instantly  died.  And  so  the  jurors  afore- 
aid,  upon  their  oath  aforesaid,  do  say  :  That  the  said  Robert  M, 
rood  win,  him,  the  said  James  Stoughton,  in  manner  and  by  the 
leans  last  aforesaid,  feloniously,  and  in  the  fury  of  his  mind,  did 
hen  and  there  kill  and  slay,  against  the  peace  of  the  people  of  the 
tate  of  Nevv-York  and  their  dignity. 

The  clerk  then  said  to  the  jury  :  “  Upon  this  indictment,  gentle- 
ien,  the  prisoner  has  been  arraigned  ;  upon  his  arraignment  he 
leaded  not  guilty  ;  and  for  trial,  puts  himself  on  the  country, 
hich  country  you  are.  Your  charge  therefore  will  be,  to  in- 
uire  whether  lie  is  guilty  of  the  felony  charged  in  this  indict- 
ent,  or  not  guilty ;  and  if  you  shall  find  him  guilty,  you  are  to  say 
>.  If  you  find  him  not  guilty,  you  are  to  say  so,  and  no  more. 

■  herefore,  gentlemen,  sit  together  and  hear  your  evidence.” 

Van  Wyck,  District  Attorney.  May  it  please  the  court  and  gentle* 
en  of  the  jury.  The  reading  of  the  indictment  has  apprised  you 
■’  the  nature  of  the  offence  charged  against  the  prisoner.  The 
ncurrence  which  has  led  to  this  result,  was  one  which  naturally 
ccited  a  great  sensation  in  this  city,  and  the  sensibility  displayed 
'a  may  take  as  a  symptom  of  honourable  feeling  among  our  citizens, 
’he  Security  of  life  is  the  most  important  benefit  that  civilization 
infers.  It  is  the  keystone  of  all  other  security  :  and  when  any 
<  mmunity,  from  the  tyranny  of  its  government,  the  want  of  govern- 
i ant,  or  the  depravity  of  its  citizens,  is  arrived  at  that  stage  that 
ian  cannot  walk  abroad  in  open  day  without,  danger  of  assassina- 
t  n,  its  condition  is  hopeless. 

It  becomes  my  duty  to  state  to  you,  gentlemen,  what  will  he  the 


44 


evidence  in  support  of  the  indictment  which  has  been  read  to  you. 
The  occurrence  took  place  shortly  before  the  new  year,  in  one  of 
the  most  frequented  parts  of  our  city,  about  the  hour  of  three 
o’clock,  in  open  da)',  between  two  gentlemen  well  known  to  each 
other.  It  will  appear  that  the  provocation  was  given  by  the  de¬ 
fendant.  Some  former  disagreement  had  existed  between  them ; 
and  as  they  approached  each  other  the  defendant  presented  his  cane 
towards  the  deceased,  and  said,  there  goes  a  coward  and  a  scoun¬ 
drel.  They  were  going  in  different  directions.  The  deceased 
turned  round  and  asked  the  prisoner  if  he  would  repeat  these 
words.  Something  was  said  by  the  prisoner,  and  the  deceased,  it 
seems,  gave  him  a  blow,  and  a  conflict  thereupon  ensued.  The 
prisoner  laid  hold  of  the  deceased  and  struck  him  with  a  sword- 
cane,  the  sheath  flew  off,  and  in  the  course  of  the  conflict  Mr. 
Stoughton  was  stabbed  with  the  dagger,  never  spoke  afterwards,  and 
very  shortly  died.  A  coroner’s  inquest  was  held  upon  the  body 
and  returned  a  verdict  of  murder.  I  state  that  fact  w  ithout  meaning 
that  it  should  have  any  influence  for  or  against  the  prisoner.  It  is 
thought  to  be  the  opinion  of  men  more  learned  in  the  law  than  we 
are,  that  it  would  be  an  improper  practice  to  try  a  man  upon  a  coro-  i 
ner’s  inquest,  when  a  grand  jury  had  found  an  indictment  for  the 
same  matter.  And  they  have  doubts  also  whether  it  would  not  be' 
reviving  an  obsolete  proceeding.  An  article  too  in  the  constitution 
of  the  United  States,  has  been  referred  to,  which  has  been  thought 
by  some  to  w'arrant  that  position.  The  course  therefore  adopted, 
has  been,  to  try  the  prisoner  upon  this  indictment,  touching  which, 
there  can  be  no  doubt.  You  are  to  try  him  now  for  the  crime  of 
manslaughter.  And  in  all  such  cases,  the  killing  being  once  estn- 1 
blished,  the  question  arises,  whether  it  was  a  felonious  homicide, I 
amounting  to  manslaughter,  or  otherw  ise  excusable  or  justifiable. 
It  will  appear  that  the  deceased  was  killed  in  a  sudden  affray.  A 
sudden  quarrel  arose  between  the  parties,  and  though  there  may 
have  been  indecent  language  or  insulting  gestures,  that  is  not  the 
point  on  which  the  case  can  turn.  The  true  and  only  consideration* 
are  these  two:  first,  whether  Mr.  Stoughton  was  killed  by  the  de-l 
fendant,and  second,  whether  the  defendant  can  show  any  justificatior 
or  excuse  ;  for  if  he  cannot,  he  will  be  guilty  of  manslaughtei  i 
at  the  least.  And  though  it  should  be  thought  to  amount  to  a  highei 
crime  than  manslaughter,  that  can  altei  nothing  in  your  verdict, 
since  if  it  amount  to  murder  it  certainly  amounts  to  manslaughter 
I  mention  this,  gentlemen,  to  obviate  certain  erroneous  opinions 
that  if  a  man  has  committed  murder,  he  is  not  to  be  found  guilty  o  1 
manslaughter.  And  though  1  propose  te  be  very  brief,  gentlemeD 
in  this  opening  of  the  testimony,  which  you  will  hear  in  detail  Iron 
the  mouths  of  the  witnesses,  yet  1  think  a  little  time  would  not  be 
ill  spent  in  reading  some  of  the  law  upon  this  subject. 

The  counsel  then  read  from  1  East's  Cr.  L.  p.  232,  619,  “  0: 
homicide  from  transport  or  passion  in  heat  of  blood,”  as  follows 
“  Herein  is  to  be  considered  under  what  circumstances  it  may  b< 
presumed  the  act  done,  though  unintentional  of  death,  or  grea 
bodily  harm,  wag  not  the  result  of  a  cool  deliberate  judgment,  sm 


45 


previous  malignity  of  heart,  but  imputable  to  human  frailty  alone. ” 

“  Upon  this  head  it  is  principally  to  be  observed,  that  whenever 
death  ensues  from  a  sudden  transport  of  passion,  or  heat  of  blood,  if 
upon  a  reasonable  provocation,  or  without  malice,  or  if  upon 
sudden  combat,  it  will  be  manslaughter  :  If  without  such  provoca¬ 
tion,  or  the  blood  has  had  reasonable  time  or  opportunity  to  cool,  or 
there  be  evidence  of  express  malice,  it  will  be  murder.  For  let  it 
be  again  observed,  that  in  no  case  can  the  party  killing  alleviate  his 
case,  by  referring  to  a  previous  provocation,  if  it  appear  by  any 
means  that  he  acted  upon  express  malice  ;  it  becomes  then  material 
to  consider  what  is  a  sufficient  provocation.  Words  of  reproach, 
bow  grievous  soever,  are  not  sufficient  to  free  the  party  killing 
from  the  guilt  of  murder  ;  nor  are  contemptuous  nor  insulting  ges¬ 
tures,  without  any  assault  upon  the  person.” 

The  distinction  is,  gentlemen,  that  if  the  killing  take  place  upon 
mere  words,  it  is  always  murder  ;  if  upon  the  provocation  of  a 
blow,  it  may  be  reduced  to  manslaughter.  But  if  he  had  given  the 
other  a  box  on  the  ear,  or  had  struck  him  with  a  stick,  or  other 
weapon  not  Likely  to  kill,  and  had  unluckily,  and  against  his  will,  kill¬ 
ed  him,  it  had  been  but  manslaughter  ;  for  no  malignant  intention 
can  be  collected  from  such  acts. 

But  if  any  assault  made  with  violence,  or  circumstances  of 
indignity,  upon  a  man’s  person,  as  by  pulling  him  by  the  nose, 
be  resented  immediately  by  the  death  of  the  aggressor,  and  it  ap¬ 
peared  that  the  party  acted  immediately  without  heat  of  blood,  up¬ 
on  that  provocation,  it  will  reduce  the  crime  to  manslaughter.  So  my 
Lord  Hale  says  it  would  be,  if  A.  riding  upon  the  road,  B.  had  whip- 
■  ped  his  horse  out  of  the  track,  and  then  A.  had  alighted  and  killed  B. 

Mr.  Fan  Wyck  then  passed  on  to  page  233  of  the  same  author,  § 
23,  and  read  these  words  :  “  In  all  the  instances  above  enumerated, 
the  party  killing  is  supposed  to  have  taken  all  advantages  in  the 
heat  of  blood  over  the  person  slain  ;  but  to  have  received  such  pro¬ 
vocation  as  the  law  presumes  might,  in  human  frailty,  heat  the  blood 
to  a  proportionable  degree  of  resentment,  and  keep  it.  boiling  to  the 
moment  of  the  fact ;  so  that  the  party  may  be  considered  as  acting 
under  a  temporary  suspension  of  reason,  and  not  from  any  deliberate 
malicious  motion.  And  it  has  been  shown,  that  in  the  case  of  a  le¬ 
gal  provocation,  strictly  so  considered,  this  heat  will  extenuate  the 
guilt  of  the  parties  acting  under  its  adequate  influence,  even  though 
he  made  use  of  a  deadly  weapon.”  And  in  page  239,  §  23,  this  au¬ 
thor  continues  :  “  In  no  case,  however,  will  the  plea  of  provocation 
avail  the  party  if  it  were  sought  for  and  induced  by  his  own  act,  in 
order  to  afford  him  a  pretence  for  wreaking  his  malice,  as  where 

A.  and  B.  having  fallen  out,  A.  says  he  will  not  strike,  but  will  give 

B.  a  pot  of  ale  to  touch  him,  on  which  A.  strikes,  and  B.  kills  him, 

'  this  is  murder.” 

I  shall  now,  gentlemen  of  the  jury,  state  in  few’  words  by  way  of 
anticipation,  what  may  possibly  be  set  up  as  a  defence.  It  will, 
perhaps,  be  said  that  this  act  was  done  in  self-defence  ;  but  the 
law  is,  that  any  person  who  sets  up  a  plea  of  self-defence,  must 
show  that  he  was  so  pressed  as  to  be  in  danger  of  great  bodily 


46 


harm,  for,  if  there  were  not  just  cause  for  such  fear,  he  ought  to 
retreat,  and  I  apprehend  this  case  will  not  amount  to  that. 

It  may  be  further  pretended,  that  in  this  sudden  conflict,  the 
wound  was  given  by  accident,  without  any  volition  or  purposed  act 
on  the  part  of  the  defendant.  I  can  only  say,  from  the  testimony  of 
those  who  saw  and  examined  the  wound,  that  it  appeared  to  have 
been  no  less  skilful  than  atrocious,  and  that  it  could  not  be  given 
without  human  aid.  That  the  deadly  weapon  with  which  it  was 
inflicted,  could  not  have  penetrated  the  body  as  it  did,  nor  have 
been  again  withdrawn,  but  by  a  human  hand  ;  and  if  it  was  given  by 
the  hand  of  the  prisoner,  it  will  be  irresistibly  conclusive  that  he  is 
guilty  of  the  crime  at  the  very  least  of  which  he  now  stands  charged. 

Here  one  of  the  jurors  (Mr.  Crawbuck)  requested  to  have  per¬ 
mission  to  speak  with  his  son,  whom  he  perceived  to  be  iu  court, 
which,  upon  all  the  counsel  consenting,  was  allowed. 

First  Witness  for  the  Prosecution — Benjamin  Clark. 

Was  affirmed,  and  then  examined  by  Fan  Wyck ,  District  Attor¬ 
ney.  Being  desired  to  state  what  he  saw  and  knew  of  the  manner 
in  which  Mr.  James  Stoughton  came  by  his  death,  he  gave  his  evi¬ 
dence  as  follows  : 

On  the  21st  of  12th  month  (December)  last,  I  saw  the  prisoner 
and  James  Stoughton  approaching  each  other  in  a  hostile  attitude, 
at  the  southwest  corner  of  Broadway  and  Courtlandt-street.  The 
prisoner  struck  Mr.  Stoughton  with  his  right  hand  on  the  head,  and 
knocked  him  down.  Mr.  Stoughton  rose  immediately,  and  return¬ 
ed  the  blow,  as  it  appeared  to  me,  upon  the  head,  or  on  the  face  of 
the  prisoner.  At  that  time  I  interfered,  and  took  Mr.  Stoughton  by 
the  collar  with  my  left  hand,  and  attempted  to  take  the  prisoner  at 
the  bar  by  the  collar  with  my  right  hand,  butmissed  my  hold,  and  pass¬ 
ed  my  arm  across  his  breast.  1  looked  the  prisoner  in  the  face,  and 
exclaimed  to  this  effect :  What !  gentlemen  fighting  in  the  street  ? 
He  replied,  he  struck  me.  I  turned  to  Stoughton,  looked  him  full 
in  the  eye,  and  then  first  recognized  him.  His  eye  had  a  stern, 
full  look,  for  perhaps  three  or  four  seconds  :  then  he  threw  up  his 
eyes,  fell  back,  and  fainted  ;  and  the  bystanders  broke  his  fall,  and 
I  let  go  my  hold  of  his  shoulder.  I  then  looked  at  the  prisoner, 
and  saw  the  dagger  of  a  swordcane  in  his  hand.  I  assisted  to  carry 
Mr.  Stoughton  upon  the  side  walk,  to  the  store  next  the  corner  of 
Courtlandt-street  and  Broadway,  upon  the  stoop  of  the  store.  Some 
person  opened  his  clothes,  his  surtout,  body  coat,  and  waistcoat ;  1 
think  his  surtout  coat  was  buttoned.  It  was  a  blue  overcoat,  with 
large  capes.  1  noticed  that  his  countenance  was  ghastly,  and  sup¬ 
posed  that  he  w’as  dying.  The  bystanders  took  him  up,  and  carried 
him  into  the  store,  and  I  followed.  They  laid  him  on  the  counter, 
in  the  back  part  of  the  room — I  took  hold  of  his  hand  and  called 
him  by  name.  I  passed  along  by  his  side,  raised  his  shirt,  per¬ 
ceived  a  little  blood,  and  then  discovered  a  wound.  He  appeared 
to  me  to  be  expiring  :  1  left  the  store,  was  absent  about  ten  min¬ 
utes,  returned,  and  found  that  he  was  dead. 


47 


Van  Wyck.  When  you  first  saw  them,  how  far  off  were  you  ? 

Wit.  As  near  as  1  can  recollect,  1  was  about  fifteen  feet  from 
Courtlandt-street,  going  down,  and  they  were  on  the  other  side.  It 
was  in  Broadway,  on  the  right  hand,  on  the  west  side,  on  the  flag¬ 
stones.  When  1  first  saw  them,  they  were  on  the  opposite  side  ; 
when  Mr.  Stoughton  fell,  he  fell  on  the  round  pavement,  on  the 
cartway. 

Q.  Would  you  know  the  swordcane  again  if  you  saw  it  ? 

Ji.  I  have  no  particular  mark  to  know  it  by.  I  have  a  recollec¬ 
tion  of  the  appearance  of  it. 

Counsel.  State  the  position  of  the  parties  when  you  first  saw  them. 

Wit.  The  prisoner  was  perhaps  four  or  five,  or  six  feet,  from  the 
corner  of  the  sidewalk,  and  nearly,  but  not  directly  facing  me. 

Q.  What  was  Mr.  Stoughton’s  position  ? 

A.  Very  near  the  corner  of  the  curbstone.  He  was  upon  the 
sidewalk  when  he  received  his  deathblow  ;  he  fell  off  quartering 
with  his  head  from  Mr.  Goodwin,  and  hiS  feet  towards  him  ;  his 
feet  perhaps  a  foot  from  the  sidewalk. 

Q.  Did  you  see  the  swordcane  during  the  time  that  they  were 
fighting  ? 

A.  I  did  not  see  it  till  he  fainted  and  fell.  When  he  fell,  the 
prisoner  and  1  both  stood  still  in  the  position  we  had  been  in. 

Q.  Did  Mr.  Stoughton  fall  on  his  back,  or  on  his  side  ? 

A.  He  fell  on  his  back — his  breech  appeared  to  take  the  force 
of  the  blow. 

Q.  Did  any  one  assist  him  to  rise  the  first  time  ? 

A.  The  first  time  he  rose  of  himself. 

Q.  Did  he  ever  speak  after  that  rising  ? 

A.  No.  I  am  not  sensible  that  he  spoke  at  all. 

Q.  How  did  he  look  ? 

A.  The  look  that  he  gave  me  was  a  full  intelligent  look.  It  ap¬ 
peared  to  me  that  his  hip  received  the  force  of  the  shock. 

Q.  When  Mr.  Stoughton  fainted,  did  you  make  any  remark  to 
Ur.  Goodwin  upon  the  matter  ? 

A.  No.  No  words  passed  but  what  I  have  stated.  I  said — - 
vhat !  gentlemen  fighting  in  the  street  ?  and  Mr.  Goodwin’s  reply 
vas — he  struck  me. 

Q.  Was  any  thing  said  immediately  about  Mr.  Stoughton’s  being 
tilled  ? 

A.  When  he  fell  the  second  time,  a  bystander  said  he  had  faint¬ 
'd  j  and  some  person  broke  his  fall,  and  let  him  down  upon  his  seat. 

Cross-examined  ly  Hoffman. 

Counsel.  You  were  going  down  Broadway,  and  the  first  thing 

on  saw  was  a  blow  by  Mr.  Goodwin  with  his  right  hand,  which 

rought  Mr.  Stoughton  to  the  ground  ? 

A.  It  was. 

Q.  Are  you  not  confident  that,  at  that  time,  Mr.  Goodwin  had  no 

ane  nor  weapon  in  his  right  hand  ? 

A.  I  have  no  recollection  of  seeing  any  thing  in  his  hand. 

Q.  You  say  that  when  Mr.  Stoughton  fell,  you  saw  Mr-  Goodwia 


48 


having  a  sword  belonging  to  a  swordcane.  Was  it  not  your  first 
intention  when  you  saw  Mr.  Stoughton  fall,  immediately  to  suc¬ 
cour  him  ? 

A.  Yes,  immediately.  I  took  no  longer  time  to  loek  round,  than 
the  moment  when  I  saw  Mr.  Goodwin  standing  with  the  sword  in 
his  hand,  and  then  I  turned  my  eyes  again  upon  Mr.  Stoughton. 

A.  After  you  had  said,  What !  gentlemen  light  in  the  street  ? — 
and  then  turned  your  back  to  Mr.  Stoughton — did  not  you  keep  I 
him  in  view  till  he  fainted  ? 

A.  I  did.  I  kept  sight  of  his  eye  till  he  fainted. 

Q.  Did  you  look  again  at  Mr.  Goodwin  after  Mr.  Stoughton  fell  ? 

A.  When  he  fell,  I  turned  my  head  again  to  the  prisoner,  and 
saw  the  dagger  in  his  right  hand.  This  was  after  he  had  fainted 
and  fell  the  second  time. 

Q.  By  Van  IVyck.  Was  a  considerable  crowd  there  at  that  time  !  ] 

A.  Yes.  I  should  suppose  that  in  a  moment  or  two  there  were 
a  hundred  persons. 

Q.  1  mean  when  you  first  wrent  up  to  them — were  not  some 
gentlemen  there  ? 

A.  Yes — there  were  two  or  three  a  little  below  them,  on  (he 
sidewalk  in  Broadway. 

Q.  Did  vou  see  Mr.  Goodwin  go  off  at  that  time  ? 

A.  As  1  was  following  Mr.  Stoughton  into  the  store,  the  prisonei 
passed  with  another  gentleman,  and  some  bystander  meutionei 
who  it  was. 

Q.  What  was  his  manner  in  passing — did  he  seem  agitated  ? 

A.  His  gait  was  easy  and  natural,  as  on  any  ordinary  occasion. 

Q.  Was  he  with  or  without  a  hat  ! 

A.  He  had  a  hat  on. 

Q,.  You  mentioned  that  you  took  up  the  hat  of  Mr.  Stoughton 
was  it  so  ? 

A.  I  supposed,  when  I  picked  it  up,  it  was  Mr.  Stoughton’s,  bu 
it  proved  to  be  Mr.  Goodwin’s.  .  i 

Q.  Can  you  recollect  whether,  when  you  first  saw  Mr.  Goodwin 
his  hat  was  oft  ? 

A.  My  impression  is,  that  when  Mr.  Stoughton  rose  and  strucl 
Mr.  Goodwin,  he  knocked  Mr.  Goodwin’s  hat  off. 

Q.  By  a  juror.  You  stated  that  there  were  a  few  gentlemen  be 
low  them  ;  what  distance  do  you  think  they  were  off.? 

A.  1  cannot  precisely  say  ;  there  were  two  or  three,  but  in¬ 
attention  was  drawn  to  the  parties — they  were  not  so  near  but  the 
the  parties  had  elbow  room.  They  might  be  at  a  distance  of  lout ^ 
five,  or  perhaps  six  feet.  I  cannot  say  exactly.  _  y 

(j.  Did  they  appear  to  be  merely  standing  and  looking  at  th 
parties  ? 

A.  It  seemed  so. 

Q.  By  another  juror.  Did  you  perceive  the  cane  at  any  time  i ! 
the.  hands  of  Mr.  Stoughton  ? 

A.  No.  He  had  nothing  in  his  hand. 

Van  Wyck.  Have  you  seen  the  cane  since  so  as  to  know  it  again; 


49 


A.  I  saw  the  dagger  at  the  time,  and  hare  seen  the  cane  since, 
but  have  no  mark  upon  it.  I  know  the  general  appearance  of  rt„ 
Q.  Bija  juror.  When  you  said  Mr.  Stoughton  returned  the  blow, 
at  what  time  did  you  mean  ? 

A.  When  Mr.  Goodwin  struck  and  knocked  him  down,  he  rose 
as  quick  as  you  may  suppose  a  man  could,  and  returned  the  blow. 

V 'in  U  i/rk  (showing  the  witness  two  canes)  asked  him  whether 
he  could  say  which  was  the  one. 

A.  My  impression  is  (taking  up  that  containing  a  dagger)  that 
;his  is  the  one,  though  it  does  not  now  appear  quite  so  long,  but  my 
mpression  is  that  it  w’as  such  as  that. 

A  juror.  Are  we  to  understand  the  witness  that  that  is  the  same 
[j  wo  rd  cane  ? 

II  itness.  That  is  either  the  same  dagger,  or  resembles  it  very 
nuch  ;  but  1  presume  many  others  might  be  produced  amongst 
vhich  I  could  not  distinguish. 

Second  ■witness  for  the  prosecution — Maltbie  Weed. 

Being  sworn  and  desired  to  relate  what  he  knew  of  the  transact 
ion,  he  stated  as  follows  : 

I  was  standing  in  the  door  of  my  store,  on  the  southwest  corner 
f Courtlandt-street  and  Broadway.  While  there,  the  two  parties 
let  nearly  opposite  the  door  on  the  corner  of  the  curbstone.  Mr. 
coodwin  was  going  down  and  Mr.  Stoughton  going  up  Broadway. 
,s  they  met,  Mr.  Goodwin  shook  his  cane  in  Mr.  Stoughton’s  face. 
Q.  Did  you  hear  any  words  at  that  time  ? 

A.  I  did  not,  sir  ;  a  word  or  two  passed,  as  I  judged  from  the  mo- 
on  of  their  lips,  but  I  did  not  hear  them.  After  they  had  met  and 
assed  each  other,  Mr.  Stoughton  went  on  a  few  steps,  and  return* 

1  d  and  stepped  up  to  Mr.  Goodwin.  A  word  or  two  passed,  as  I 
idged  from  the  motion  of  their  lips,  and  then  Mr.  Stoughton  struck 
fr.  Goodwin.  After  that,  Mr.  Goodwin  brought  up  his  cane  and 
ruck  Mr.  Stoughton;  and  as  Mr.  Stoughton  received  the  blow, 
le  sheahed  part  of  the  cane  flew  out.  Mr.  Stoughton  then  fell,  on 
te  receipt  of  the  blow. 

Q.  How  long  did  the  conflict  last  ? 

A.  I  should  think  not  more  than  four  or  five  minutes,  probably 
i  bt  so  long. 

Q.  Did  several  blows  pass  ? 

A.  1  saw  only  two.  One  that  Mr.  Stoughton  gave  Mr.  Goodwin, 
id  one  that  Mr.  Goodwin  gave  Mr.  Stoughton.  By  that  time,  a 
imber  of  spectators  got  round  them,  and  as  I  remained  standing 
.  the  door,  I  could  not  have  a  view  of  them. 

Q.  How  were  the  parties  dressed  ? 

A.  I  believe  Mr.  Goodwin  had  a  drab,  and  Mr.  Stoughton  had  % 
lue  great  coat. 

Q.  Were  there  large  capes  to  both  their  coats  ? 

A.  I  believe  there  were,  but  cannot  state  very  distinctly. 

Q.  Would  you  know  the  cane  ?  Did  you  see  it  at  the  time  ? 

A.  Yes.  I  saw  it  at  the  time. 

Ill  7 


50 


($.  Would  you  know  it  again  ? 

A.  I  might,  perhaps. 

Q.  Did  you  see  it  at  the  grand  jury  ? 

A.  I  did. 

Q.  Was  that  it  ?  ( showing  it.) 

A.  According  to  my  recollection,  that  is  it.  It  was  laid  upon  m 
eounter  ;  1  only  looked  upon  it,  and  laid  it  down  again.  My  lm 
pression  is,  that  this  is  the  same. 

Q.  Did  you  see  the  position  in  which  Mr.  Stoughton  fell  ? 

A.  He  fell  back  from  Mr.  Goodwin. 

Q.  How  long  was  it  after  the  tirst  blow  till  Mr.  Stoughton  fell  ? 

A.  One  or  two  minutes,  perhaps,  before  he  fell  tirst ;  rathe 
more  before  they  were  parted  and  he  fell  the  second  time. 

Q.  After  Mr.  Stoughton  rose,  did  any  more  blows  pass  betwee 
them  ? 

A.  1  did  not  see  Mr.  Stoughton  rise,  except  with  the  aid  of  som 
of  the  spectators. 

Q.  Do  you  mean  after  he  fainted  ? 

A.  It  was  after  he  fell  ;  I  did  not  know  that  he  had  fainted.  Bi 
it  appeared  to  me,  that  after  he  fell  he  was  raised  by  some  of  th 
spectators. 

Q.  Was  he  wounded  at  the  time  you  speak  of  ? 

A.  I  do  not  know,  sir,  indeed. 

Q.  Was  he  not,  after  he  fainted,  carried  into  the  store  ? 

A.  He  was  carried  to  Mr.  Van  Antwerp’s  stoop,  and  lay  son 
time  there. 

Q.  Did  you  see  the  dagger  in  the  prisoner’s  hand  after  the  d 
ceased  fell  ? 

A.  I  did  not,  sir.  He  stepped  into  my  store  and  out  again. 

Q.  Might  Mr.  Stoughton  have  been  stabbed  in  this  conflict  ai 
you  not  see  it  ? 

A.  I  think  he  might. 

Q.  Had  Mr.  Stoughton  any  stick  or  weapon  in  his  hand  ? 

A.  I  did  not  see  any. 

Q.  Which  appeared  to  have  the  advantage  in  the  conflict  at  firs  I 

A.  I  thought  they  appeared  to  have  equal  advantage  at  the  tig ' 
I  saw  them,  and  I  could  see  no  advantage  until  Mr.  Stoughton  fell 

Q.  Did  you  know  the  person  of  Mr.  Stoughton  ? 

A.  I  knew  him  by  reputation  and  by  sight. 

Q.  Did  you  know  Mr.  Goodwin  at  all  ? 

A.  No  farther  than  by  seeing  him  then  and  hearing  him  named  i 

Q.  Did  Mr.  Stoughton  usually  pass  that  way  about  that  tii 
of  day  ? 

A.  I  do  not  know. 

Q.  Who  was  with  Mr.  Goodwin  ? 

A.  A  persou  who  1  was  told  was  Mr.  Cambreleng. 

Cross-examined  by  Hoffman. 

Q.  When  Mr.  Goodwin  passed  Mr.  Stoughton,  you  say  he  cc 
tinued  on.  What  distance  had  he  passed  before  Mr.  Stougkli’ 
turned.  Was  it  not  to  the  opposite  side  of  Courllandt- street '!  1 


51 


A.  I  think  it  was.  They  were  nearly  opposite  my  store  when 
they  passed  at  the  southwest  corner  of  Courtlandt-street.  Mr. 
Goodwin  continued  his  walk  down  Broadway. 

Q.  Did  he  continue  on  his  way  without  halting,  stopping,  or  look¬ 
ing  back  ? 

A.  He  did. 

The  Mayor .  You  think,  sir,  it  was  on  the  southwest  corner  of 
Courtlandt-street  where  they  passed  each  other? 

A.  It  was  above  my  stoop  a  little,  but  nearly  opposite  my  door, 
where  they  first  passed.  The  affray  took  place  just  above,  on  the 
lower  corner.  After  a  few  words  had  passed,  Mr.  Stoughton  struck 
him  on  the  shoulder. 

Q.  Were  there  any  intermediate  blows  after  Mr.  Goodwin  struck 
with  the  cane  and  the  head  flew  off? 

A.  No,  sir. 

O.  Did  you  ever  see  Mr.  Stoughton  rise  after  the  first  blow  ? 

A.  I  did  not  see  him  rise. 

Q.  You  say  Mr.  Goodwin  came  into  your  store.  Had  he  a  hat 
«n  at  that  time  ? 

A.  I  did  not  take  notice.  I  cannot  recollect. 

Q.  When  he  left  your  store,  did  he  walk  leisurely  away  ? 

A.  I  did  not  see  him  after  that. 

Q.  Did  he  not  come  in  to  wait  for  his  hat,  and  was  he  not  stand¬ 
ing  there  waiting  till  they  could  find  it  ? 

A.  I  cannot,  indeed  sir,  recollect, 

Q.  When  he  lifted  this  cane  and  the  sheath  flew  off,  had  he  hold 
of  the  end  or  small  part  of  the  cane  ? 

A.  He  held  it  so,  (taking  it  by  the  large  end.) 

Q.  Did  Mr.  Stoughton,  upon  that  blow,  immediately  fall  ? 

A.  He  did.  I  saw  no  blow  whatever  given  by  Mr.  Goodwin  after 
that. 

Q,.  Did  you  see  him  even  approach  to  strike  him  after  that  ? 

A.  After  that  1  had  no  distinct  view,  because  of  the  crowd. 

Q.  By  a  Juror.  Did  you  not  see  him  after  the  sheath  parted  or 
flew  off,  or  when  Mr.  Clark  laid  hold  of  him  ? 

A.  I  did  not  see  him  then,  for  the  spectators  gathered  about  them. 

Hoffman ,  producing  a  ground  plan,  asks  witness  whether,  when 
they  first  met,  they  were  not  near  the  corner  of  the  curbstone,  and 
whether  Mr.  Stoughton  did  not  afterwards  advance  near  to  the 
other  corner  before  he  turned  round. 

The  Mayor  then  put  other  questions  to  the  witness  to  fix  the 
respective  positions  of  the  parties  more  definitely,  to  which  he 
answered  that  the  witness  was  accidentally  at  his  door,  he  did  not 
see  Mr.  Clark  at  all,  he  saw  nobody  join  in  the  conflict,  and  saw 
no  other  weapon.  Mr.  Goodwin  held  the  cane  in  his  right  hand, 
and  stood  nearly  with  his  back  towards  the  witness  ;  his  left  side  to 
the  northward,  but  something  obliquely  ;  his  right  arm  must  have 
been  visible  to  the  witness. 

Q.  by  a  Juror.  You  say  the  sheath  flew  off  when  he  struck,  and 


52 

you  saw  no  dagger ;  how  do  you  know  there  was  a  dagger  or  a 
sword  ? 

A.  Immediately  after  Mr.  Goodwin  gave  the  deceased  the  blow, 
I  saw  the  two  parts  of  the  cane  on  the  cartway.  The  sword  lay 
there  immediately  after  Mr.  Stoughton  fell. 

Van  Wyck  then  produced  a  blue  coat  with  capes,  brought  in  by 
Mr.  Stoughton’s  servant,  which  the  witness  supposed  to  be  the  same 
he  had  on,  though  he  did  not  notice  it  particularly.  (It  was  pierced 
at  the  part  corresponding  with  the  situation  of  the  wound  as  de¬ 
scribed.) 

Third  witness  for  the  prosecution — Dr.  Valentine  Mott. 

Q.  Did  you  examine  Mr.  Stoughton  shortly  after  this  happened  ? 
please  to  state  what  you  saw  and  heard. 

fVitness.  1  should  beg  the  permission  of  the  court  to  look  at  the 
evidence  I  gave  on  the  coroner’s  inquest,  which  l  signed  my  name 
to,  as  something  may  have  escaped  my  memory. 

The  Mayor.  I  think  this  would  not  be  right.  It  is  not  like  the  case 
where  a  party  makes  a  memorandum  for  his  own  use  in  a  civil  case, 
and  is  allowed  to  refresh  his  memory  as  to  some  particular  facts  ; 
the  reason  then  is  different.  The  witness  then  proceeded. 

Witness.  I  was  requested,  but  on  what  day  of  the  week  or  month 
I  cannot  remember,  to  go  and  see  a  person  said  to  have  been  killed 
in  Broadway  ;  when  I  arrived  at  the  house,  I  found  Mr.  James 
Stoughton  lying  upon  a  counter  dead.  He  was  said  to  have  been 
wounded,  which  led  necessarily  to  the  examination  of  his  body.  1 
found  on  the  left  side  a  wound,  about  an  inch  in  length,  perhaps 
less.  From  this  wound  had  issued  a  little  blood,  which  appeared 
particularly  upon  his  linen.  1  introduced  a  probe  into  the  wound, 
and"  found  it  went  the  whole  length  of  the  probe.  I  laid  open  his 
body  for  the  purpose  of  ascertaining  the  extent  and  nature  of  this 
wound.  And  upon  close  inspection,  I  found  that  the  wound  passed 
through  the  lower  part  of  the  left  lung,  through  the  bag  which  sur¬ 
rounds  the  heart ;  and  through  the  point  or  apex  of  the  heart  itself, 
transfixed  the  heart  through  the  bag  on  the  opposite  side.  And,  I 
believe,  the  point  of  the  instrument  was  arrested  by  the  breastbone. 
In  its  passage  through  the  heart,  it  opened  the  left  ventricle  or  great 
cavity  of  the  heart  ;  and  from  the  oblique  direction  which  it  took, 
it  passed  nearly  through  the  right  cavity  or  ventricle,  but  did  not 
open  it,  passing  only  through  the  fleshy  part.  I  should  have  stated 
that  it  passed  between  the  ninth  and  tenth  ribs,  rather  nearer  the 
backbone  than  the  middle  of  the  body,  and  the  violence  with  which 
it  entered  split  off  a  portion  of  the  lower  or  tenth  rib  ;  there  was 
considerable  blood,  as  of  course,  poured  out  into  the  chest  near  the 
heart.  It  was  doubtless  made  with  a  pointed  instrument. 

The  sword  was  now  produced. 

Q.  Van  Wyck.  Do  you  suppose  that  instrument  would  have  in¬ 
flicted  such  a  wound  ? 

A.  Such  an  instrument  as  that  (if  not  that  very  instrument) 
would  have  produced  such  a  wound.  From  the  direction  of  the 


53 


wound,  and  its  termination,  it  would  have  required  an  instrument 
of  eight  inches. 

(Here  the  witness  showed  the  district  attorney,  with  the  weapon 
in  his  hand,  how  it  entered,  about  the  middle  of  the  line  between 
the  sternum  and  the  backbone.)  There  is  no  doubt  it  occasioned 
his  death.  It  was  clearly  a  mortal  wound. 

Van  Wyck.  Could  any  kind  of  wound  have  occasioned  death 
quicker  than  that  ? 

A.  It  might  be  that  other  wounds  would  cause  more  instan¬ 
taneous  death. 

Q.  What  other  wound  ? 

A.  A  wound  made  by  such  an  instrument  going  into  the  right 
or  principal  artery  of  the  system,  called  the  Aorta. 

Q.  Would  it  not,  if  given  with  such  force,  have  penetrated 
the  breastbone  ? 

A.  It  would  have  required  very  great  velocity  to  have  pene¬ 
trated  the  breastbone. 

Q.  Could  that  wound  have  been  given  without  a  stroke  ? 

A.  Certainly  it  might  by  a  fall,  if  a  man  fell  upon  it. 

Q.  If  such  a  wound  was  given  by  a  fall  upon  such  an  instru¬ 
ment,  would  the  instrument  fall  out  of  itself  ? 

A.  1  think  not,  unless  it  was  drawn  out. 

Q.  Could  a  person,  having  received  such  a  wound,  have  strength 
enough  immediately  afterwards  to  rise  ? 

A.  Undoubtedly. 

Q.  How  long  might  a  person  live  after  such  a  wound  ? 

A.  A  very  short  time  perhaps,  or  perhaps  a  number  of  hours, 
or  even  days.  And  persons  have  been  known  to  live  fourteen  or 
sixteen  days  after  a  musket  ball  having  passed  through  the  heart, 
and  opened  one  of  the  great  cavities  I  have  mentioned. 

Q.  If  Mr.  Stoughton  had  fallen  upon  the  instrument,  would  it 
have  fallen  out  again  of  itself  ? 

A.  Upon  feeling  this  handle  I  perceive  it  is  very  heavy  :  it 
might  have  been  extracted  by  being  shaken,  or  caught,  or  brought 
out  partly  by  its  own  weight  and  partly  by  the  movement  of  the 
clothes,  without  being  pulled  out  with  the  hand  of  any  person. 

Q.  YVhat  clothes  had  Mr.  Stoughton  on  ? 

A.  A  great  coat,  tight  coat,  and  other  usual  clothing. 

Q.  Had  he  a  flannel  shirt  ? 

A.  I  did  not  examine  whether  he  had. 

Q.  Would  it  have  fallen  out  if  it  had  been  struck  through  all 
those  clothes  ? 

A.  It  would  have  fallen  more  probably,  because  of  those  clothes 
moving  about  him. 

Cross-examined  by  Mr.  Emmet. 

Q.  You  mention  that  it  passed  through  all  those  clothes  that 
you  have  named.  Now  I  ask  you  whether,  to  inflict  such  a 
wound  and  pierce  through  so  many  obstacles,  would  not  require 
more  than  ordinary  strength  ?  If  you  were  not  inclined  by  other 
circumstances  to  draw  a  conclusion,  would  you  not  think  it  more 


54 


likely  to  have  happened  from  the  weight  of  a  person  falling  upon 

the  weapon  ? 

A.  I  have  reflected  a  good  deal,  and  am  of  opinion  that  the 
wound  was  more  probably  inflicted  by  a  fall  upon  the  instrument 
than  by  the  hand  of  any  person. 

Q.  Considering  the  entrance  of  this  wound  aod  its  internal  di¬ 
rection,  do  you  think  it  likely  to  have  been  given  by  a  man  standing 
in  front  of  another,  and  that  other  in  the  act  of  falling  away  from 
him  ? 

A.  1  should  not  think  it  likely. 

Q.  One  question  more,  doctor,  if  you  please.  The  difficulty  of 
its  coming  out  unless  drawn  by  the  hand  has  been  mentioned.  Now 
if  the  weapon  had  entered  thus,  (showing)  is  there  any  improba¬ 
bility  that  it  might  have  come  out  by  the  persons’  lifting  the  de¬ 
ceased,  or  the  motion  of  his  clothes  ? 

A.  it  might  he  so. 

Van  Wyck.  Might  not  this  have  happened  from  a  blow  given  with 
the  force  of  a  man  in  a  scuffle  ? 

A.  It  would  then  have  been  with  more  than  ordinary  violence, 
by  a  very  strong  person,  with  unusual  effort. 

Van  Wyck.  Might  it  have  come  out  by  means  of  the  person 
who  gave  the  blow  still  holding  it,  and  the  other  falling  off  from 
it,  or  falling  down. 

A.  1  can  conceive  that  the  instrument  may  have  been  entered 
first  bv  a  blow'  or  stab,  and  then  that  the  person  falling  on  it 
may  have  pushed  it  farther  in  :  but  it  would  not  be  a  man  of 
ordinary  strength  that  could  have  given  that  wound  with  a  blow 
simply.  It  would  not  be  a  man  of  our  times.  It  may,  however, 
have  been  it)  the  hand,  and  the  person  killed  by  falling  upon  it. 

Q.  Must  not  he  have  fallen  at  the  same  time  with  the  de¬ 
ceased  ? 

A.  That  is  the  more  probable  way,  for  the  instrument  will  not 
stand  upright  of  itself.  The  body  must,  of  course,  in  that  case, 
have  fallen  upon  it  accidentally.  It  must  have  entered  very 
violently  and  very  suddenly.  I  he  weight  of  the  deceased’s  body 
coming  upon  an  instrument  of  that  kind,  might  very  easily  occa¬ 
sion  the  wound. 

Q.  Is  it  not  then  probable  that  the  weapon  has  first  entered 
bv  a  blow,  and  t^en  the  fall  pressed  it  further  into  the  body  ? 

A.  1  think  not,  for  the  stroke  of  a  person’s  hand  would  not  pro¬ 
bably  have  split  the  rib. 

Q.  Might  not  a  man  of  considerable  force,  an  athletic  man,  have 
struck  hard  enough  to  have  split  the  rib  ? 

A.  1  do  not  think  it  so  likely  to  happen  that  way. 

Q.  Is  that  rib  peculiarly  strong  ? 

A.  No,  the  ribs  are  nearly  of  the  same  strength  till  you  come 
lower  down  than  the  ninth  or  tenth. 

Emmet.  As  the  steel  part  of  it  is  very  small  and  light,  and  the 
handle  large  and  heavy,  might  it  Dot  have  possibly  fallen  with  the 


55 


head  downwards,  and  by  meeting  with  some  oblique  surface  con¬ 
formable  to  its  shape,  have  stood  upright  ? 

(N.  B.  The  head  of  this  dagger  was  not  quite  square  or  trans¬ 
verse,  but  somewhat  bevelled  and  tipped  with  silver.) 

A.  Certainly  it  might. 

Emmet.  1  observe  that  the  edge  towards  the  point  of  it  is  a  little 
turned.  Would  it  not  have  required  great  force  to  turn  the  edge  in 
that  way  ? 

A.  Certainly. 

Emmet.  Would  it  not  have  required  more  than  superhuman 
force  to  have  inflicted  such  a  wound  upon  a  man  who  was  at  the 
moment  falling  away  from  the  person  striking  ? 

A.  1  think  such  an  effort  of  muscular  strength  would  have  been 
required  at  least,  as  would  have  made  the  action  by  which  it  was 
exerted  very  manifest. 

Van  Wyclc.  Might  not  such  a  number  of  wide  capes  have  still 
prevented  the  action  or  motion  from  being  distinctly  seen  ? 

A.  If  it  had  been  a  simple  or  ordinary  wound,  they  might  :  but 
not,  1  think,  so  violent  an  exertion  as  this  must  have  been.  Both 
suppositions  are  possible,  but  the  other  is  more  probable. 

A  Juror.  Could  a  person  standing  face  to  face  with  another,  in¬ 
flict  a  wound  in  the  place  where  this  was  given  ? 

A.  I  think  it  might  be  done  :  but  it  must  have  been  dune  very 
deliberately  and  designedly,  and  by  a  man  of  very  extraordinary 
strength 

The  .Mayor.  If  the  two  parties  stood  opposite  each  other,  it  could 
only  be  done  by  stretching  the  arm  and  reaching  with  the  hand 
round  the  body  of  Mr.  Stoughton  ? 

A.  In  order  to  pierce  the  body  as  it  did,  it  must  have  been  en¬ 
tered  with  the  hand  very  far  behind. 

Here  Mr.  Van  Wyck  stood  up  to  give  the  witness  an  opportunity 
of  demonstrating  his  opinion.  And  Mr.  Emmet  in  like  manner  beg¬ 
ged  of  Air.  Ogden  to  stand  in  the  position  supposed  to  be  that  of 
the  deceased.  Air.  Wells  also  stood  up,  and  placing  himself  a  little 
sideways,  asked,  whether  it  might  not  have  been  easily  done  with 
the  arm,  supposing  the  party  so  far  turned.  Air.  Emmet  ask¬ 
ed,  in  that  case,  whether  it  would  not  have  rather  passed  straight 
through  the  body,  and  not  upwards.  To  ascertain  the  relative  po¬ 
sitions  of  the  parties,  and  their  attitudes,  Griffin  begged  to  call  Mr. 
Clark  again  ;  he  was  accordingly  called  and  further  examined. 

Witness.  I  came  up  when  Mr.  Stoughton  was  about  to  give  Mr. 
Goodwin  a  blow,  and  I  took  Stoughton  by  the  collar  with  my  left 
hand  ;  Mr.  Goodwin’s  face  was  then  on  my  right  hand.  They  were 
[standing  nearly  fronting  each  other,  with  about  the  breadth  of  my 
body  between  them. 

Messrs.  Van  Wyck  and  Griffin  then  stood  up,  that  Mr.  Clark  might 
place  them  before  the  court  and  jury  in  the  manner  the  parties 
were, in  respect  to  each  other. 

Emmet.  If  Mr.  Goodwin  had  inflicted  the  wound,  he  must  have 


5(j 


stretched  not  only  round  the  body  of  the  deceased,  but  across  a 
space  equal  to  yours.  . 

It  being;  now  5  o’clock,  the  mayor,  after  cautioning  the  jury  not 
to  talk  upon  the  subject  so  as  to  make  up  their  minds,  till  they  had 
heard  the  rest  of  the  testimony,  observed  that  some  refreshment 
was  prepared  for  them,  lest  the  fatigue  they  were  likely  to  under¬ 
go  might  overcome  their  strength,  and  render  them  incompetent  to 
their  duties.  . 

The  jury  were  then  committed  to  the  charge  of  several  of  the 
offtcers  duly  sworn  for  that  purpose,  and  the  court  adjourned  till 
6  o’clock. 

At  6  o'clock  P.  M.  the  court  met. 

PRESENT  AS  BEFORE. 

The  jury  were  called  over,  and  each  answering  to  his  name,  the 
trial  proceeded. 

Fourth  witness  for  the  prosecution — Dr.  Cyrus  Perkins. 

Witness.  I  examined  the  body  of  Mr.  Stoughton,  and  observed  a 
wound  through  the  skin  about  half  an  inch  long,  between  the  ninth 
and  tenth  ribs,  somewhat  nearer  the  back  than  the  breastbone.  It; 
direction  was  upwards,  and  probably  touched  the  breastbone  ;  which 
however,  wTas  not  examined  to  see  whether  it  was  wounded.  The 
instrument  passed  through  the  left  lung,  and  through  the  heart  anr 
the  sack  which  contains  it.  In  passing  through  the  heart,  it  open¬ 
ed  one  of  its  principal  cavities.  I  suppose  the  instrument  penetratec 
about  ten  inches. 

Q.  Did  yon  see  the  instrument  ? 

A.  I  saw  that  which  it  was  said  made  the  wound.  (Mr.  Van  Wycl 
shows  the  witness  the  sword.)  I  examined  the  instrument  at  th( 
time  ;  this  appears  to  me  like  it. 

Q.  Did  you  examine  the  clothes  to  see  if  they  were  perforated? 

A.  1  did  not.  This  was  at  the  dissection  by  Doctor  Mott.  1  did  no 
examine  the  wound,  I  only  judged  from  the  size  of  the  body,  an 
the  direction  in  which  the  wound  was  traced,  and  had  no  doubt  tha 
the  wound  occasioned  the  death.  Mr.  Stoughton  was  dead  when 
came  there.  1  perceived  that  the  lower  edge  of  the  ninth  rib  wa 
wounded  where  it  was  very  thin,  and  the  edge  was  split  off. 

Q.  Could  a  man  of  ordinary  strength  have  given  a  blow  wit 
such  an  instrument,  so  as  to  split  the  rib,  and  then  penetrate  th 
body  as  was  done  ? 

A.  It  is  my  belief  that  it  wrnuld  not  have  required  very  grei 

force. 

Q.  Are  you  very  certain  as  to  the  rib  which  was  wounded  ? 

A.  1  have  no  doubt. 

Q.  How  vras  the  direction  of  the  wound  ? 

A.  Forwards,  upwards,  and  inwards,  towards  the  centre  of  th 
body. 

Q.  If  the  instrument  had  entered  by  a  blow,  would  it  probabl 
have  fallen  out  of  itself  ? 


57 


A.  I  think  it  doubtful ;  I  could  not  give  a  confident  opinion  upon 
that  point. 

Q.  Is  the  interior  part  of  the  .body  and  the  substance  through 
which  it  passed,  such  as  would  probably  retain  it  ? 

A.  The  skin  itself  would  retain  it,  more  than  any  other  part  through 
which  it  passed,  from  its  elasticity.  The  instrument  had  only  one 
cutting  edge,  so  that  the  skin  must  have  closed  round,  and  adhered 
strongly  to  the  instrument. 

Q.  VV ould  that  part  of  the  heart  through  which  it  passed  hold  it  ? 

A.  More  closely  than  any  other  through  which  it  went,  being  a 
strong  muscular  part. 

Q.  Supposing  two  persons  in  close  conflict,  would  it  have  been 
possible  for  one  to  have  struck  the  other  in  this  way  ? 

A.  It  would  depend  upon  their  relative  situations. 

Q.  If  they  stood  front  to  front  ? 

A.  If  they  did,  and  were  near  enough,  there  would  be  no  diffi-* 
;ulty  in  inflicting  a  wound  of  that  kind. 

Q.  Could  it  have  been  given  by  a  person  holding  the  dagger  that 
way  ?  (holding  it  after  the  manner  of  a  hand  and  dagger  in  he¬ 
raldry.) 

A.  If  the  two  persons  were  of  equal  height,  it  would  be  hard, 
mless  one  stood  in  some  way  higher  than  the  other. 

Q.  Suppose  they  stood  on  equal  ground,  and  the  party  struck 
inder  the  arm  of  the  other  ? 


A.  It  ought  then  to  be  done  this  way  :  (turning  the  instrument 
he  other  wav.) 

.Mr.  Wells :  and  Mr.  Van  Wyck  again  stood  up,  that  the  witness 
(light  explain  his  exact  meaning. 

Q.  Supposing  the  parties  to  be  clinched  at  the  time  ? 

Witness.  I  think  any  man  may  tell  just  as  well  as  I  can. 

Griffin.  Would  you  have  personal  strength  enough  to  force  that 
ito  the  body  oi  a  man  to  its  whole  extent  ?  have  you  any  doubt 
f  your  power  to  plunge  it  ten  inches  into  a  human  bodv  ? 

A.  1  have  not. 

Alderman  Allen.  Standing  right  front  to  front,  it  could  only  be 
one  m  this  way  :  (with  the  arm  round,  and  the  point  returning.) 
.ould  you  employ  your  whole  strength  in  that  way  ? 

A.  Not  so  well  as  in  other  ways  of  using  it. 

Q.  At  what  angle  with  the  vertical  line  do  you  think  it  entered 
le  body  ? 

A.  I  think  about  forty-five  degrees,  or  not  far  from  that. 

Q.  Have  you  any  doubts  that  you  would  have  strength  enough  to 
ve  such  a  blow  ?  °  & 

A.  1  should  not  have  any  doubt  that  any  person  could  do  it  :  for 
understood  Dr.  Mott  to  speak  of  the  edge  of  the  rib  Now  the 
pper  edge  of  the  rib  is  thick,  but  the  lower  is  thin,  and  would  re- 
(it  but  bttie,  and  it  was  the  lower  edge  that  was  splintered. 

Have  you  reflected  on  the  circumstances  of  probability,  how 
f  thls  might  be  by  a  fall  or-by  a  blow  ? 

8 


A.  1  have  heard  it  suggested,  and  therefore  have  reflected.  There 
is  but  one  way  with  any  probability  that  it  could  have  happened 
from  a  fall.  The  range  of  possibility  indeed  is  very  wide  ;  but  if 
it  was  from  a  fall,  1  think  the  instrument  must  have  been  held  in 
the  hand  this  way,  (as  last  described)  and  the  other  party  then 
have  fallen  upon  it,  and  both  have  fallen  together. 

Q.  Is  there  any  probability  of  its  having  fallen  upon  the  head 
and  stood  up  ? 

A.  It  is  possible,  but  not  at  all  probable. 

Q.  Which  is  most  probable,  the  blow  or  the  fall  ? 

A.  I  would  rather  not  answer  that  question,  il  it  is  not  necessary. 

Q.  The  question  is,  whether  you  think  it  most  probable  that  it 
was  by  a  blow  or  by  a  fall  ? 

A.  As  there  is  only  one  way  in  which  it  could  be  inflicted  by  a  i 
fall,  and  many  by  a  blow,  I  must  think  it  was  more  probably  by  a 
blow. 

Q.  Might  it  probably  fall  out  of  itself? 

A.  1  should  not  expect  that  it  would  fall  out  instantly,  but  it 
might. 

Q.  Suppose  it  to  have  passed  through  the  coat,  great  coat,  waist¬ 
coat  and  shirt  ? 

A.  I  think  the  skin  alone  would  make  more  resistance  than  all 
the  rest. 

Q.  Could  the  party,  in  your  opinion,  who  inflicted  the  wound, 
when  the  deceased  fell  off  from  him,  have  parted  with  and  left  it  in 
his  body,  and  it  then  have  fallen  out  of  itself  ? 

A.  I  think  the  one  who  inflicted  the  wound  must  rather  have 
fallen  with  the  other.  He  must  eitiier  have  left  it,  or  used  some 
exertion  to  withdraw  it. 

Q.  How  long  do  you  presume  the  party  could  have  lived  aftei 
receiving  this  wound  ? 

A.  It  is  not  possible  to  say  with  certainty.  There  are  some  ex 
traordinary  cases  ;  but  I  should  not  think  that  one  so  wounded  couk 
live  above  five  minutes — 1  judge  from  other  similar  cases.  1  have 
known  instances  of  men  who  have  inflicted  very  heavy  blows  aftei 
receiving  such  death  wounds. 

Cross-examined  by  Emmet. 

Q.  Was  it  not  Dr.  Mott  that  performed  the  operation  ? 

A.  It  was. 

Q-  You  say  it  struck  the  lower  part  of  the  ninth  rib — would  no 
that  change  its  first  direction  ? 

A.  It  would  in  some  degree. 

C.  Would  the  striking  upon  the  upper  part  of  the  tenth  rib,  havt 
changed  it  so  as  to  make  it  take  a  more  horizontal  direction  ? 

A.  Striking  the  lower  part  would  have  deflected  it  perhaps,  ant 
brought  it  nearer  to  a  horizontal  course. 

Q.  You  stated  several  wavs  in  which  the  wound  might  have  beei^ 
given  by  one  person  to  another.  If  they  were  clinched  together 
you  say,  it  could  be  done  thus  :  (over  1ms  shoulder.)  But  is  not  tha 
a  way  that  would  much  diminish  the  force  of  the  party  striking  ? 


A.  Unless  he  stood  a  good  deal  higher  than  the  shoulder  of  the 
other,  it  would. 

Q.  Must  he  not  stand  so  much  higher  as  that  his  breast  would  be 
higher  than  the  shoulder  of  the  other  ? 

A.  1  doubt  whether  he  need  be  so  much  higher. 

Q.  Must  he  not  then  be  so  much  above  as  to  be  able  to  stretch 
over  till  hia  arm  could  reach  nearly  the  length  of  the  instrument 
below  the  wound  ? 

A.  Half  the  length  of  the  instrument  would  suffice  if  I  was  right 
in  saying  that  it  entered  at  an  angle  of  45  degrees. 

Q.  Must  not  the  parties  have  been  quite  close  to  render  this 
possible  :  so  close  that  lie  could  have  the  length  of  his  arm  in¬ 
creased  by  his  body  leaning  over  ? 

A.  Certainly,  they  must  have  been  close  to  each  other. 

Q.  He  must  then  have  his  arm  raised  and  passed  over  the  shoul¬ 
der  of  his  adversary  ?  Could  that  have  been  done  in  the  public 
street  before  crowds  of  spectators,  and  not  one  see  it  ? 

A.  1  can  conceive  nothing  but  the  capes  of  the  coat  to  prevent 
its  being  seen.  I  think  it  extraordinary  that  no  one  should  have  per¬ 
ceived  such  a  movement  as  that. 

Q.  Then  if  the  wound  was  inflicted  in  that  way,  how  must  the 
instrument  have  been  withdrawn  ? 

A.  It  must  have  been  over  the  shoulder  or  by  the  side. 

Q.  The  arm  then  must  have  descended  again  in  the  same  diago¬ 
nal  direction  in  order  to  draw  it  out,  and  to  the  extent  of  its  whole 
ength  ? 

A.  I  cannot  say,  sir. 

Q.  We  must  take  the  case  as  proved  by  the  witnesses.  Both  were 
itanding  on  the  pavement  opposite  each  other;  Mr.  Stoughton 
icing  as  tall  or  taller  than  Mr.  Goodwin,  and  it  is  to  be  determined 
vhich  of  the  two  ways  is  most  probable,  the  blow  or  the  fall  ? 

A.  I  think  it  quite  improbable,  if  they  stood  equally  high,  that 
he  wound  could  have  been  given  over  the  shoulder. 

Q.  If  they  were  fronting  each  other,  like  men  in  close  conflict, 
vould  it  not  be  more  probable  that  it  should  have  happened  by  the 
ailing  on  the  instrument  ? 

A.  I  think  it  would. 

Van  Wyck.  If  they  were  upon  even  ground  in  close  conflict,  and 
le  arm  of  the  party  receiving  the  blow  raised,  would  there  have 
een  any  difficulty  then  ? 

A.  I  think  not,  if  they  were  close  to  each  other. 

Q.  Supposing  it  not  over  the  shoulder,  and  the  two  parties  mere- 
r  struggling,  do  you  see  any  real  difficulty  ? 

A.  If  the  back  of  one  was  bent  down  1  should  not. 

Q.  In  a  common  and  ordinary  scuffle,  would  there  not  be  a  var 
ety  of  situations  where  it  could  be  done  ? 

Ax  No  doubt :  in  such  scuffles,  men  foil  into  almost  all  possible 
tuations. 

Q.  If  so.  might  not  this  blow  have  been  given  and  not  seen  ? 


60 


A.  I  think  the  dagger  would  be  seen,  unless  the  capes  of  the  coat 
prevented  it. 

Emmet.  It  is  now  mentioned  that  the  wound  might  be  given  under 
the  arm  ;  if  so,  and  it  struck  against  the  lower  part  of  the  ninth  rib, 
would  it  not  glance  and  take  a  more  horizontal  direction  ? 

A.  That  is  the  way  it  would  be. 

Emmet.  Though  the  cape  might  hide  the  point,  could  it  also 
have  hid  the  hand  ? 

A.  It  could  not  well  hide  the. hand. 

Emmet.  Would  not  all  the  spectators  then  have  seen  the  hand, 
since  the  whole  could  not  have  been  concealed  under  the  cape  ? 

The  Mayor  now  observed,  that  when  physicians  were  called,  it 
was  on  professional  questions  ;  that  the  knowledge  of  a  physician 
was  not  at  all  preferable  to  that  of  any  other  man  in  answering  the 
inquiries  now  made  ;  and  appealed  to  Mr.  Emmet  himself,  whether 
the  jury  were  not  as  good  judges  how  blows  could  be  given,  as  the 
most  learned  physicians,  who  are  only  experts  in  their  own  science. 

Emmet.  They  are,  however,  used  to  judge  of  wounds,  and  their 
direction  and  effects. 

Van  Wyck.  Would  not  a  fall  have  the  same  effect  as  to  changing 
the  direction  ? 

A.  1  think  so. 

Emmet.  That  calls  for  another  question.  If  the  wound  was  by  the 
freight  of  the  body  falling,  would  it  not  equally  have  changed  the 
direction  ? 

A.  If  he  had  fallen,  I  think  the  point  of  the  instrument  woulc 
have  penetrated  the  breastbone,  where  it  appears  it  stopped. 

The  Mayor.  You  mean,  that  a  body  moving  with  velocity,  is  noi 
so  easily  deHected  from  its  course  ? 

Witness  explained,  that  it  would  if  it  had  velocity,  more  easily 
split  the  rib,  and  more  distinctly  follow  its  course. 

Emmet.  If  the  person  fell  upon  it,  would  it  not  be  more  likely  t< 
break  the  rib  and  pursue  its  direction  ? 

No  answer. 

Fifth  Witness  for  the  Prosecution — William  Weir. 

I  was  coming  up  from  the  customhouse,  after  three  o’clock,  op 
posite  Courtlandt-street.  on  the  Maiden-lane  side  ;  I  saw  two  gen 
tlemen  scuffling  in  the  street,  about  the  centre  of  Courtlandt-street 
I  staid  ten  or  fifteen  seconds,  and  saw  them  closed  ;  and  Mr.  Good 
win  repeating  several  blows  on  the  head  of  Mr.  Stoughton,  upoi 
which  he  fell.  After  he  fell,  I  perceived  Mr.  Goodwin  making  se 
veral  blows  at  him  when  he  was  down  ;  upon  which  1  crossed  th> 
street,  and  by  the  time  l  arrived  about  the  head  of  Courtlandt 
street,  they  were  both  on  their  feet.  I  saw  a  number  of  peopl 
about  Mr.  Stoughton,  and  very  few  about  Mr.  Goodwin.  At  th 
same  time,  I  saw  Mr.  Stoughton  make  an  effort  to  meet  Mr.  Good 
win  again  ;  the  people  present  immediately  rushed  in  betwee 
them,  and  1  went  towards  Mr.  Goodwin.  Mr.  Goodwin  had  walke 
back  towards  the  southwest  corner  of  Courtlandt-street.  I  turne 


61 


round  and  saw  Mr.  Stoughton  apparently  fainting,  which  drew  my 
attention  towards  him,  and  he  almost  instantly  fell  ;  1  thought  he 
appeared  to  be  dying.  I  then  turned  to  Mr.  Goodwin  and  saul,  you 
have  lulled  the  man.  At  the  time  1  saw  Mr.  Stoughton  fall,  I  saw 
the  dagger  part  of  a  swordcane  in  Mr.  Goodwin's  hand,  ’it  was 
about  that  time,  1  am  not  sure  whether  before  or  after,  that  some 
@ne  made  the  observation  that  he  had  killed  the  man,  and  he  said 
he  did  not  intend  to  have  drawn  that.  Shortly  after  that  he  held  a 
hat,  whether  he  had  taken  it  olf  his  head  1  cannot  say,  but  he  held 
it  belore  him  and  said,  this  is  not  my  hat.  Jt  was,  perhaps,  a  mo¬ 
ment  after,  that  some  one  observed  it  was  of  no  consequence,  he 
had  better  take  it ,  very  soon  alter,  he  went  away  with  another 
gentleman  down  Broadway. 

Q.  How  soon  did  you  observe  the  swordcar.e  in  the  hands  of  Mr. 
Goodwin  ? 

A.  I  observed  him  at  the  first  strike  with  something  that  I  took 
io  be  a  cane,  but  1  did  not  know  :  I  had  no  idea  that  it  was  a 
swordcane. 

Q.  How  far  in  the  street  did  Mr.  Stoughton  fall  ? 

A.  Near  the  centre  of  the  street — clear  of  the  curbstone,  and 
■ather  without  the  crossing  stones,  his  head  towards  Broadway. 

Q.  Did  Mr.  Goodwin  make  any  reply  to  the  observation,  you 
tave  killed  the  man  ? 

A.  1  heard  him  say  to  some  one  that  Stoughton  struck  him  first, 
was  asked  before  the  grand  jury  how  Mr.  Goodwin  looked  when 
ie  said  those  words.  I  answered,  that  I  thought  he  looked  sur¬ 
prised  on  seeing  the  dagger. 

Cross-examined  by  Hoffman. 

Q.  I  understand  you  were  on  the  right  side  of  Broadway.  Were 
here  any  persons  between  you  and  them  when  you  first  discovered 
hem  ? 

A.  None.  Mr.  Stoughton  seemed  rather  retreating,  and  Mr. 
loodwin  pressing  him,  and  their  arms  were  flying  about. 

Q.  What  was  Mr.  Goodwin,,  striking  Mr.  Stoughton  with  when 
ou  saw  them  ? 

A.  I  took  it  to  be  a  cane.  I  did  not  see  any  thing  like  a  sword. 
Q.  Did  not  you  before  say  that  he  had  the  blade  in  his  hand  ? 

A.  I  said  I  thought  it  was  a  cane  he  was  striking  with. 

The  Mayor.  Where  were  they  at  the  first  ? 

A.  Rather  on  the  lower  side.  At  the  curb  Mr.  Stoughton  fell 
ither  more  towards  the  upper  or  northern  side. 

Q.  Are  you  sure  you  saw  him  strike  him  when  he  was  down  ? 

A.  I  am. 

Q.  Are  you  as  sure  of  that  as  of  any  thing  you  have  testified  to  ? 
A.  I  am. 

Q.  Did  you  see  any  blows  behind  his  head  ? 

A.  I  thought  he  struck  him  upon  his  head. 

Q.  Were  there  not  many  persons  near  them  ? 

A.  There  were  some  nigh,  and  at  the  time  I  saw  him  strike  him. 


\ 


&2 


a  great  many  ran  across  the  street.  When  I  got  there  they  were 
both  on  their  feet. 

Q.  Did  you  see  Mr.  Clark  and  Mr.  Cambreleng  there  ? 

A.  1  did  not  see  Mr.  Clark — l  saw  Mr.  Cambreleng. 

Q.  Was  you  standing  near  Mr.  Cambreleng  at  this  time  ? 

A.  1  did  not  see  him  for- some  little  time.  The  first  time  I  saw 
him,  he  was  standing  on  the  curbstone  at  the  corner  of  Courtlandt- 
street. 

Q.  Did  you  assist  in  carrying  Mr.  Stoughton  ? 

A.  I  did- 

Q.  Did  much  confusion  arise  ? 

A.  A  great  deal. 

Q.  Who  was  in  company  with  you  when  you  went  up  Broad 

way  ? 

A.  Mr.  Haycock,  of  the  customhouse,  and  Mr.  Ball. 

Q.  How  much  time  was  consumed  in  the  whole  of  what  yoi 
saw  ? 

A.  1  cannot  positively  say. 

Q.  Have  you  said,  on  a  former  occasion,  that  the  whole  did  no 
exceed  thirty  seconds  ? 

A.  1  think  not  more 

And  during  that  time  you  crossed  over  from  the  east  to  thi 
west  side  of  Broadway  ? 

Q.  By  a  Juror.  Did  you  see  the  sheath  fly  out  of  his  hand  ? 

A.  No.  1  thought  it  was  nothing  but  a  cane,  till  I  saw  the  dagge 
afterwards  in  Mr.  Goodwin’s  hand. 

Q.  By  a  Juror.  Was  Mr.  Goodwin  all  the  time  on  his  feet  ? 

A.  He  was. 

Sixth  Witness  for  the  Prosecution — William  Haycock. 

Witness.  I  saw  the  affray.  I  was  passing  up  Broadway  at  tlire 
o'clock,  on  the  right  side,  near  the  corner  of  Maiden-lane, 
heard  somebody  call  out,  a  fight.  I  looked  over  and  saw  two  gen 
tlemen  fighting,  and  making  at  one  another.  One  had  a  cane,  an 
the  other  w'as  apparently  using  his  arms.  After  two  or  three  blow 
had  passed  with  the  cane  and  the  arms,  one  of  the  gentlemen  fel 
About  a  second  afterwards  I  saw  Mr.  Goodwin  jump  along  side  < 
him  and  strike  him  several  blows  with  the  head  of  the  cane — thre 
or  four  blows — he  had  a  white  glove.  1  saw  nothing  but  the  hat 
die  of  the  cane.  He  struck  him  several  blows  when  he  was  dowr 
f  ran  over,  and  Mr.  Stoughton  was  raised  up  by  one  or  two  portei 
and  other  people.  There  was  a  crowd  collected.  Mr.  Goodwi 
put  his  head  in  and  looked  over  my  shoulder  at  Mr.  Stoughtoi 
They  looked  at  each  other.  Mr.  Goodwin  looked  at  him,  app; 
rentl  v  with  the  intention  of  commencing  the  battle  again  ;  and  som  I 
person  observed  that  he  had  done  enough,  and  that  he  had  betft 
be  off.  Mr.  Stoughton,  immediately  after  that,  fell ;  and  it  w; 
observed  by  some  one  that  he  had  a  fit.  I  then  assisted,  with  son 
others,  to  raise  him  out  of  the  street,  and  he  was  brought  on  tf 
sidewalk.  He  never  spoke  at  all  after  he  was  raised  up.  I  w 


63 


With  him  from  the  time  he  was  raised,  after  his  first  fall,  till  near 
the  moment  of  his  death.  I  never  saw  the  swordcane  in  Mr.  Good¬ 
win’s  hand  after  he  had  been  raised  up  the  first  time.  But  some 
person  called  out,  here  is  a  dagger  found,  and  it  was  held  up  (I 
believe)  by  Mr.  Weed  :  and  somebody'  said,  the  man  has  been  stab¬ 
bed.  Mr.  Stoughton  was  then  removed,  and  was  lying  on  the  plat¬ 
form  in  front  of  Mr.  Weed’s  store.  When  he  was  carried  into  the 
’tore,  some  one  (I  think  Mr.  Clark)  asked  me  if  I  did  not  see  some 
hood.  This  was  the  next  store  to  the  corner  of  Courtlandt-street 
—I  believe  it  was  at  Mr.  Van  Antwerp’s  store.  I  there  assisted 
n  taking  off  his  clothes  and  opening  his  shirt  neck.  I  undid  one 
if  his  braces,  and  lowering  his  pantaloons,  observed  some  blood 
There  came  several  doctors  in  :  Doctors  Cooper,  Mott,  Perkins 

nd  Dr.  Nelson  was  the  last.  The  wound  was  verv  small 

••  j  ‘ 

Cross-examined,  by  Hoffman. 

Were  you  no  nearer  than  the  opposite  side  of  the  street  when 
le  blows  were  given  ? 

A.  1  ran  over  upon  seeing  the  blows. 

Q.  Did  you  see  Mr.  Clark  then  ? 

Jl.  1  saw  a  quaker  gentleman  whom  I  suppose  to  be  Mr.  Clark 
Q.  When  you  first  saw  this  gentleman,  had  not  Mr.  Stoughton  a 
jld  of  Mr.  Goodwin  by  the  collar  ? 

f  -  l^ould  not  tel1  5  tlie  arms  both  appeared  to  be  in  motion. 
H-  When  did  you  first  see  the  dagger  ? 

A.  I  had  a  very  transient  view  of  it  at  any  time.  When  it  was 
;;ld  up  by  Mr.  Weed,  1  supposed  that  he  had  found  it  on  tie  ground 
car  the  spot. 

Q-  Was  Mr.  Goodwin  gone  before  you  saw  the  dagger  ?- 
A.  I  do  not  know  when  he  went. 

Q.  Was  the  body  lying  on  the  stoop  when  you  saw  it  ? 

A.  1  believe  not  1  think  not :  it  was  when  he  was  on  the  nave- 
ijint.  1 

Mayor.  Do  you  think,  when  you  saw  the  dagger,  the  body  was 
c  the  sidewalk  ? 

No  answer. 

By  one  of  the  Aldermen.  Where  did  he  fall  ? 

A.  Near  the  gutter,  1  think  ;  three  or  four  feet  from  the  lower 
3  e  of  Courtlandt-street. 

Seventh  Witness  for  the  Prosecution — Leonard  Baker. 

Witness  was  standing  on  the  stoop  of  the  stage  office,  between  six 
ail  seven  yards  from  where  the  affray  happened— was  looking  di¬ 
rt  tij  into  Broadway — saw  two  gentlemen  meet  :  one  with  a  blue 
Cat,  the  other  with  a  light  drab.  They  closed  immediately — the 
mi  with  the  blue  coat  struck  the  one  with  the  light  coat.  It  was 
v<y  near  the  south  corner— some  blows  ensued,  and  very  soon  J 
the  man  in  blue  fall  on  his  back,  in  Broadway. 

!•  What  took  place  after  that  ? 

'  1  next  1  saw  Mr.  Goodwin  seemed  to  be  standing 


64 


\ 


over  Mr.  Stoughton,  who  was  down  on  the  ground,  and  Mr.  Clark, 
was  holding  him  with  his  arms  round  him.  I  next  saw  Mr.  Good¬ 
win  on  the  sidewalk  ;  he  had  something  in  his  hand  like  a  sword- 
cane — he  threw  it  down — some  gentleman  put  a  hat  upon  his  head, 
and  he  walked  away.  He  was  much  surprised,  apparently,  at  the 
dagger,  as  it’  he  did  not  know  what  he  had  in  his  hand. 

The  Mayor.  Did  you  see  him  strike  Mr.  Stoughton  when  be  was 
down  ? 

A.  I  thought  he  was  slapping  him  in  the  face — I  did  not  see  any 
cane  at  all. 

Cross-examined  by  Hoffman. 

Q.  Was  it  merely  with  his  open  hand  that  he  struck? 

A.  It  appeared  so.  I  saw  no  cane  at  that  time.  I  will  not  be 
sure  whether  he  threw  it  down,  or  some  person  tflok  it  out  of  hi* 
band.  I  did  not  see  the  cane  in  his  hand  at  any  time  before  Mr 
Stoughton  fell. 

Q.  Were  there  not  blows  with  the  fists  between  these  gentlemen 

A.  1  thought  so. 

Q.  Did  you  see  what  took  place  on  the  flagstones  or  in  th< 
street  ? 

A.  They  met  on  the  walk,  and  when  Mr.  Stoughton  fell,  it  wa 
with  his  head  towards  Maiden-lane,  and  his  feet  two  or  three  fee 
from  the  curbstone. 

Q.  Did  you  hear  Mr.  Goodwin  say  these  words  :  “  this  is  not  in 
hat  ?” 

A.  I  did  not  hear  him  say  one  word. 

Q.  Did  he  go  away  very  hastily .  or  how  did  he  appear  ? 

A.  He  seemed  in  a  very  great  passion. 

Q.  When  you  first  saw  him,  had  he  his  hat  on  ? 

A.  He  had  not. 

Q.  by  Griffin.  When  you  saw  him  throw  away  the  dagger,  did  h 
then  seem  in  a  violent  passion  ? 

A.  He  did. 

The  .Mayor.  Did  I  understand  you  that  you  never  saw  the  dagger  c 
cane  until  after  Mr.  Stoughton  had  fainted  ? 

A.  It  was  so,  sir  ;  I  neither  saw  the  cane  nor  the  dagger. 

Eighth  Witness  for  the  Prosecution — Alexander  J.  M  ‘  Williams.  ' 

Witness  being  desired  by  Air.  Van  Wyck,  as  the  other  witness! 
had  been,  to  state  what  he  knew,  said  :  On  the  31st  of  last  Decembt 
I  was  corning  up  Broadway,  and  saw  two  gentlemen  fighting ; 
was  on  Maiden-lane  side.  By  the  lime  1  came  to  Maiden-lane, 
saw  Mr.  Stoughton  down,  and  Mr.  Goodwin  over  him  as  if  strikii 
him,  or  going  to  strike  him.  This  was  near  the  centre  of  the  he; 
of  Courtlandt -street.  I  went  over  then  and  saw  Mr.  Stougith 
lying  in  the  street,  and  got  hold  of  him  and  asked  him  to  gel  up.  f 
did  not  speak,  and  with  the  assistance  of  another  person,  we  raise 
him  up — Mr.  Goodwin  was  on  the  sidewalk  when  he  got  on  1 
feet ;  he  stood  about  six  minutes  alone — he  seemed  as  if  he  wish 


65 


to  speak.but  could  not.  Mr.  Goodwin  was  looking  at  him  and  he  al 
Mr.  Goodwin.  I  saw  neither  the  sword  nor  the  sheath  ;  he  rested 
his  head  upon  me  about  fourteen  seconds,  and  as  he  was  falling,  I 
with  some  other  person  recovered  him  ;  at  that  time  Mr.  Goodwin 
was  not  doing  any  thing,  but  after  Mr,  Stoughton  fainted,  he  went 
into  the  corner  store. 

Q.  Did  you  hear  Mr.  Goodwin  say  any  thing  ? 

A.  I  did  not ;  1  never  heard  him  say  any  thing  at  any  time.  I  did 
not  see  him  get  a  hat.  They  carried  Mr.  Stoughton  to  the  second 
stoop  from  the  corner  :  and  1  afterwards  saw  Mr.  Goodwin  going 
quite  deliberately  down  Broadway  with  another  gentleman,  while 
the  deceased  was  on  the  stoop. 

Cross-examined  by  Hoffman. 

Q.  Did  you  see  any  cane  or  stick  at  any  time  when  they  w§re 
fighting  ? 

A.  No,  sir;  it  appeared  to  be  with  their  fists.  When  I  crossed, 
:he  prisoner  was  in  the  act  of  striking,  or  just  going  to  strike,  with 
^iis  fist. 

Q.  Was  his  fist  clenched,  or  was  it  with  the  flat  hand  ? 

A ,  I  think  it  w’as  with  the  flat  hand. 

Q.  Did  you  see  him  give  any  blows  ? 

A.  No.  I  saw  him  attempting  it.  He  had  neither  cane,  nor  stick, 
or  any  thing  of  that  kind  in  his  hand  at  that  time.  1  never  saw 
word,  stick,  or  cane,  until  after  Mr.  Stoughton  was  raised  the  se- 
ond  time,  nor  then,  till  after  he  fainted.  When  they  looked  at  each 
ther  after  we  had  raised  him  the  first  time,  there  was  a  space  of 
bout  five  feet  between  them  :  Mr.  Goodwin  was  on  the  sidewalk, 
nd  Mr.  Stoughton  in  the  street. 

Q.  Did  you  distinctly  see  Mr.  Goodwin  ? 

A.  I  saw  him,  certainly. 

Q,  Had  he  any  thing  in  his  hand  then,  as  you  recollect? 

A.  I  cannot  say,  whether  he  had  any  thing  at  that  time  ;  it  was 
fter  Mr.  Stoughton  fainted  that  1  saw  the  thing  in  Mr.  Goodwin’s 
and. 

Q.  After  you  had  raised  up  Mr.  Stoughton  the  first  time,  were 
ley  near  enough  to  give  each  other  blow's  ? 

A.  They  were  near  enough  to  reach  at  each  other  ;  but  there 
ere  several  persons  between  them,  and  no  blows  passed. 

Q.  Did  you  see  Mr.  Clark,  the  quaker  gentleman  ? 

A ,  I  do  not  know  Mr.  Clark,  but  I  believe  it  was  a  quaker  gen~ 
jman  that  helped  me  to  raise  him  up. 

Q.  Did  Mr.  Stoughton  offer  to  make  any  blows  after  he  rose  up  ? 
A.  O  no,  sir,  he  was  not  able, 

Q,  by  a  Juror.  If  Mr.  Goodwin  had  any  thing  in  his  hand,  would 
mi  not  have  seen  it  ? 

i  A.  I  think  I  should  have  seen  it,  if  he  had. 

Q,  Did  you  see  Mr,  Goodwin  go  back  to  the  sidewalk  ? 

A.  I  did. 

Juror.,  Did  the  deceased  speak  after  the  time  he  was  lifted  up? 

9 


66 


A.  He  did  not. 

It  was  now  9  o’clock,  and  the  court  was  adjourned  until*  1 1  next 
morning.  It  was  ordered  that  the  jurors  should  be  kept  by  two  mar¬ 
shals  and  a  deputy  sheriff;  these  officers  were  duly  sworn  to  keep 
them,  &c.  and  they  were  taken  to  the  District  Court  Room,  where 
they  were  accommodated  with  supper  and  beds. 

SECOND  DAY.— WEDNESDAY,  MARCH  15th. 

At  1 1  o'clock  A.  M.  the  Court  met . 

PRESENT  AS  BEFORE. 

• 

The  jury  were  called  over,  and  all  answered  to  their  names. 
The  prisoner  being  again  put  to  the  bar,  the  jurors  on  the  gene¬ 
ral  panel  not  empanelled  in  this  cause,  were  informed,  that  they 
had  permission  to  withdraw  until  the  following  morning,  at  the 
usual  hour. 

Ninth  Witness  for  the  Prosecution — Thaddeus  Phelps. 

On  the  day  of  the  conflict  between  Mr.  Goodwin  and  Mr.  Stough¬ 
ton,  about  three  in  the  afternoon,  as  I  was  coming  down  Broadway, 
my  attention  was  arrested  by  a  conflict  near  the  southwest  corner  of 
Courtlandt-street.  When  I  first  saw  them,  they  were  opposite 
King  and  Mead’s  store,  the  same  side  where  I  was  passing — the 
west  side.  I  was  between  thirty  and  fifty  yards  above  King  and 
Mead’s.  When  I  arrived  on  the  ground,  there  were  but  four  or 
five  persons  present.  AVhen  I  first  saw  the  parties,  there  were 
but  three.  I  am  not  confident,  though  under  the  impression,  that 
I  helped  Mr.  Stoughton  up.  At  all  events,  I  was  there  at  the  time 
of  his  getting  up.  After  he  was  placed  in  an  erect  posture,  he  re¬ 
clined  upon  the  shoulder  of  a  gentleman.  Here  I  wish  to  correct 
a  part  of  my  testimony  before  the  grand  jury  and  the  inquest,  where 
I  stated  that  it  was  upon  the  arm  of  Mr.  Clark  :  but  upon  seeing  Mr. 
M‘Williams  yesterday,  I  was  undeceived,  and  am  now  sure  it  was 
upon  his  arm.  I  had  never  seen  either  of  those  gentlemen  before. 
The  first  I  discovered  of  Mr.  Goodwin  was,  he  was  in  a  stooping  pos¬ 
ture,  on  the  confines  of  the  curbstone,  and  apparently  taking  up  his 
hat.  He  was  on  the  sidewalk,  and  Mr.  Stoughton  on  the  paved 
way',  from  five  to  eight  feet  off.  Mr.  Stoughton  getting  up  a  mo¬ 
ment  after,  and  reclining  upon  Mr.  M‘ Williams, looked  with  a  greal 
deal  of  passion,  as  I  observed,  at  his  opponent,  who  had  turned 
round,  which  led  me  to  attach  no  great  importance  to  any  thing 
that  had  taken  place  :  for  from  the  manner  and  attitude  of  both  the 
parties,  my  impression  was  that  it  was  the  intention  of  both  to  re¬ 
new  the  fight,  and  that  Mr.  Stoughton  was  only  recovering  himsell 
for  the  purpose.  I  stood  perhaps  about  four  feet  from  Mr.  Stough¬ 
ton,  with  a  full  view  of  his  countenance,  and  my  attention  was  alter¬ 
nately  directed  to  the  countenance  of  both.  In  this  position  I  re¬ 
mained  till  Mr.  Stoughton  fell,  or  fainted.  The  change  of  his  coun¬ 
tenance  was  sudden  and  instantaneous,  from  life  to  death.  He  wai 


67 


caught  by  one  or  two  of  the  bystanders,  when  the  first  impulse  of 
my  feelings  directed  me  to  Mr.  Stoughton's  relief.  According  to 
my  impression,  f  assisted  in  carrying  his  body  to  Mr.  Van  Ant¬ 
werp’s  store,  the  second  store,  I  think,  from  the  corner.  We  at 
first  thought  of  taking  him  into  that  next  the  corner.  At  the  time 
of  conveying  the  body,  1  saw  Mr.  Goodwin  in  the  crowd.  We  made 
all  haste,  after  laying  him  down,  to  take  off  his  nfickcloth,  and  open 
his  clothes,  to  give  him  a  chance  of  respiration.  I  assisted  in  keep¬ 
ing  the  crowd  back,  to  prevent  their  pressing  too  much  upon  him. 
While  we  were  engaged  in  getting  off  his  clothes,  a  person  came  up 
to  me  and  asked  me  to  look  and  see  if  Mr.  Stoughton  had  not  been 
stabbed.  I  requested  the  person  near  Mr.  Stoughton  to  look,  and 
another  person  said,  0  no,  the  wound  is  in  his  head.  I  saw  no 
mark  or  contusion  on  the  head,  only  a  small  scratch  a  little  over  the 
temple.  Mr.  Stoughton  at  that  time  appeared  to  be  in  the  last  ago¬ 
nies  of  death,  lying  on  the  threshold  of  the  store.  Some  one  came 
up  whom  1  believe  to  be  Mr.  Cambreleng,  and  I  said,  he  is  a  dead 
nan.  At  that  moment  I  perceived  Mr.  Stoughton  to  open  his  eyes, 
md  thought  that  if  a  vein  was  opened,  he  might  get  relief.  1  had 
isked  several  persons  to  go  for  a  doctor,  but  nobody  would.  I 
raw  Mr.  Goodwin  with  Mr.  Cambreleng,  who  went  away.  When  I 
eturned  with  the  doctor,  Mr.  Stoughton  was  dead.  1  saw  a  cane 
vhen  my  attention  was  first  arrested.  It  appeared  to  me  that  the 
larties  were  all  contending  for  it,  for  I  thought  there  were  three  in 
he  struggle  :  but  I  saw  nothing  of  the  cane  after  my  arrival  on  the 
round.  I  afterwards  understood  that  the  third  person  was  Mr. 
'lark.  I  cannot  say  I  saw  Mr.  Stoughton  fall,  and  as  to  Mr. 
roodwin,  he  seemed  quite  composed.  Mr.  Stoughton  seemed  to  look 
ttentively  at  Mr.  Goodwin,  and  Mr.  Goodwin  at  him,  but  notparti- 
ularly  agitated.  Mr.  Stoughton  never  uttered  a  word,  nor  Mr.  Good¬ 
in  neither.  1  never  thought  of  any  wound  havingbeen  inflicted,  nor 
id  I  see  the  cane  after  the  first  sight  of  it,  when  they  were  brandish- 
ig  it  among  them  ;  and  then  it  appeared  to  me  to  be  simply  a  cane 
p  in  the  air,  and  some  persons  striving  for  it,  I  paid  little  attention 
i  it.  I  am  not  certain  whether  Mr.  Stoughton  had  risen  at  the  mo- 
ent  I  came,  or  whether  I  helped  him.  I  know  he  had  been  down, 
:>d  stood  after  he  got  up  for  30  seconds,  or  from  that  to  a  minute, 
a  his  feet. 

Cross-examined  by  Hoffman. 

Witness  said,  that  when  he  saw  these  gentlemen,  they  appeared 
1  be  in  a  scuffle — that  there  were  three  persons.  But  he  cannot, 
1pm  any  subsequent  circumstances,  say  whether  Mr.  Clark  was 
lie  third  or  not.  He  had  no  recollection  of  seeing  Mr.  Stoughton 
11,  but  he  must  have  fallen,  of  course,  as  he  approached,  for  the 
j  rties  appeared  to  be  all  on  their  feet  when  he  came  up.  He  saw 
r  blows  given  after  Mr.  Stoughton  was  down,  nor  after  he  came 
v.  The  situation  of  the  parties  was  such,  that  there  could  not 
five  been  any  blows,  for  Mr,  Goodwin  was  not,  at  any  time,  within 
a  Or  eight  feet  of  Mr.  Stoughton.  Goodwin  was  within  the  curb. 


sind  Stoughton  outside,  from  five  to  seven  feet.  I  saw  no  blow  on 
either  side  ;  but  there  seemed  to  be  a  scramble  for  the  cane. 

Q.  Was  there  any  thing  to  prevent  you,  as  you  approached,  to 
see  whether  Mr.  Stoughton  was  down  or  not  ? 

A.  I  think  not.  1  was  the  fifth  or  sixth  person  that  came  ;  and 
had  as  good  a  view,  I  think,  as  any  one  there.  As  1  apprehended 
they  were  about  renew  the  fight,  1  turned  my  eyes  upon  them 
alternately.  After  Mr.  Stoughton  got  upon  his  feet  he  never 
changed  his  position  at  all.  If  there  had  been  blows  given  when 
he  was  down,  l  should  think  it  very  strange  that  I  should  not  have 
seen  them. 

Q.  Did  Mr.  Goodwin  appear  to  be  composed  after  that  ? 

A.  He  appeared  very  composed  indeed,  considering  his  situ¬ 
ation. 

Mr.  Phelps  was  about  retiring,  when  the  ma3ror  asked  whether 
he  could  recollect  if  the  third  person  was  Mr.  M'Williams,  but  he 
could  not,  having  paid  little  attention,  except  to  the  combatants. 

Tenth  Witness  for  the  Prosecution — John  H.  Ball. 

Witness.  I  was  going  up  Broadway,  w’hen  I  observed  a  scuffle  be¬ 
tween  Mr.  Stoughton  and  Mr,  Goodwin,  and  immediately  crossed 
over.  Mr.  Stoughton  was  then  down  ;  Mr.  Goodwin  stood  on  the 
edge  of  the  curb  :  I  was  immediately  before  him.  Mr.  Stoughton 
rose  and  leaned  on  a  gentleman's  shoulder,  and  after  a  short  time  ij 
fell  backwards  suddenly.  Mr.  Goodw  in  held  the  sword  part  of  the 
swordcane,  swinging  it  by  the  head  between  his  thumb  and  fingers, 
the  blade  dangling  down.  This  was  at  the  time  Mr.  Stoughton  was 
down  the  second  time.  Mr.  Goodw  in  said  some  words,  which  I 
did  not  exactly  hear.  I  observed  the  cane  while  I  was  on  the  op¬ 
posite  side  of  the  street.  I  saw  Mr.  Goodwin  strike  at  Mr.  Stough¬ 
ton,  holding  it  by  the  but  end.  Mr.  Goodwin  had  a  large  cape  coat  i 
on,  and  Mr.  Stoughton  also  :  I  saw  him  strike  Mr.  Stoughton  over  J 
the  head,  holding  it  short. 

■  Q.  By  Van  Wyck.  Did  you  perceive  any  particular  blow,  which 
caused  him  to  fall  ? 

A.  I  did  not.  I  was  surprised  to  find  he  did  fall  from  the  blow, 
which  did  not  appear  to  me  very  violent.  I  did  not  observe  Mr. 
Goodwin  change  the  direction  of  the  instrument.  I  did  not  ob¬ 
serve  whether  he  dropped  the  swordcane,  but  when  Mr.  Stough¬ 
ton  was  lying  down  the  second  time,  I  saw  it  swinging  in  his  fingers. 

I  was  going  home  in  company  with  Mr.  Haycock  and  Mr.  Weir. 

Cross-examined  by  Air.  Hoffman. 

Witness  says  he  does  not  know  Mr.  M‘Williams,  but  that  h« 
thought  and  is  sure  he  saw  Mr.  Goodwin  strike  when  Mr.  Stough¬ 
ton  was  falling  the  first  time. 

Q:  Did  you  see  him  strike  after  that  fall  ? 

A.  No.  1  saw  him  strike  when  he  was  falling,  but  not  after.  1 
crossed  with  Mr.  Weir  and  Mr.  Haycock,  and  assisted  in  carrying 


him  into  the  house.  When  I  came  up  I  saw  the  prisoner  ea 
the  curbstone.  The  whole  did  not  last  longer  than  five  minutes  ; 
I  cannot  say  how  long  from  the  first  time  I  saw  them,  until  Mr. 
Stoughton  lay  on  the  ground.  It  could  not  be  more  than  four  or 
five  minutes,  as  I  walked  fast  across. 

Juror.  When  you  saw  the  prisoner  strike  Mr.  Stoughton  with  the 
cane,  was  the  sword  sheathed  or  naked  ?  Had  he  hold  of  the  cane 
or  the  sword  ? 

A.  I  thought  it  was  a  cane  at  that  time,  and  that  he  held  it  near 
the  handle,  but  the  large  capes  prevented  me  from  seeing  more. 

Juror.  Where  did  he  appear  to  strike  him'when  he  was  falling  ? 

A.  All  the  blows  appeared  to  be  aimed  at  the  head. 

Eleventh  Witness  for  the  Prosecution — Michael  MlGowan. 

Witness.  I  had  been  for  a  long  time  past  an  orange  seller.  I  was. 
standing  at  the  lower  corner  of  Courtlandt-street  and  Broadways 
where  Mr.  Weed  lives,  when  I  saw  a  gentleman  coming  down 
facing  towards  the  battery.  I  stooped  to  move  my  oranges  and 
shift  them  in  the  basket  ;  and  when  I  looked  up,  I  saw  two  gentle¬ 
men  engaged,  just  on  the  curbstone,  close  by  me.  Mr.  Goodwin 
happened  to  be  next  to  me,  and  the  other  facing  me  ;  and  he  struck 
at  him  with  a  sword  or  dagger.  I  believe  it  was  a  dagger  with  the 
butt  end  foremost.  I  did  not  se@  the  other  part  of  the  cane  ;  he 
held  the  blade  and  struck  him  on  the  back  of  the  head  with  the 
handle.  Mr.  Stoughton  was  going  back  and  he  after  him,  till  they 
came  to  the  middle  of  Courtlandt-street.  Shortly  after  that  Mr. 
Stoughton  fell  before  him,  and  Mr.  Goodwin  came  up  to  him  and 
struck  him  in  the  same  manner  after  he  fell,  and  when  he  was  on 
the  ground. 

Q.  Had  he  still  the  dagger  in  his  hand,  and  did  he  still  strike  him 
with  that  ? 

A.  It  appeared  to  me  to  be  so.  While  Mr.  Stoughton  was  up, 
he  was  making  resistance,  with  his  hands  up  to  save  his  head.  I 
cannot  say  whether  Mr.  Goodwin  had  hold  of  him.  I  did  not  ob¬ 
serve  him  strike  him  anywhere  but  on  the  head,  as  long  as  he  was 
up.  He  retreated  four  or  five  yards  before  he  fell.  1  did  not  see 
Mr.  Stoughton  give  any  blows  as  he  was  retreating. 

Q.  Did  you  see  Mr.  Goodwin  immediately  after  Mr.  Stoughton 
fell  ? 

A.  There  came  a  gentleman  forward  in  quaker’s  apparel,  and 
took  hold  of  Mr.  Goodwin;  I  cannot  say  whether  the  swordcane 
was  still  in  his  hand.  After  Mr.  Stoughton  was  down,  Mr.  Goodwin 
went  back  on  the  curbstone — a  moment  or  two  after.  At  the  time 
he  struck  him,  he  was  on  the  pavement.  Mr.  Stoughton  fell  on  his 
rump  ;  I  had  no  thought  of  his  falling  when  he  did  fall.  They  were 
so  near  hand,  that  it  appeared  to  me  he  could  not  knock  him  down. 
Mr.  Stoughton’s  heels  flew  up,  and  he  went  on  his  back  ;  I  saw  him 
as  he  was  helped  up.  Whether  he  was  able  to  raise  himself  I  da 
not  know,  nor  do  I  know  who  helped  him.  I  remarked  six  or  seven 
men  and  boys  wh©  came  from  the  opposite  side  of  Broadway  and 


70 


Courtlandt-street :  I  do  not  know  exactly  where  they  came  from. 
The  gentlemen  staid  till  they  saw  him  struck,  and  then  came  to  his 
assistance. 


Cross-examined  by  Hoffman. 

Witness  did  not  see  Mr.  Stoughton  strike  Mr.  Goodwin  at  all  at 
any  time — both  their  hats  fell  off.  The  quaker  gentleman  took 
hold  of  Mr.  Goodwin  ;  the  people  came  up,  and  I  don’t  know  whe¬ 
ther  Mr.  Clark  helped  Mr.  Stoughton  up  or  not.  The  people  that 
were  coming  along  stopped  at  both  sides.  At  the  time  of  the  first 
fall  I  did  not  observe  many  people. 

Q.  Why  did  you  not  go  to  his  assistance,  seeing  him  so  ill  used  ? 

A.  I  would  have  gone  to  the  gentleman’s  assistance,  but  because 
of  the  basket  1  had  in  my  care,  and  that  1  thought  the  others  would 
go,  and  I  was  surprised  they  did  not  interfere. 

Twelfth  Witness  for  the  Prosecution — Dr.  Charles  L.  H.  Schifffelin. 

Witness  being  asked,  stated  that  he  was  a  physician  and  surgeon, 
and  proceeded  :  1  was  going  down  Broadway  on  the  21st  of  De¬ 
cember,  about  half  past  three  ;  Mr.  Vanderbilt  (the  coroner)  asked 
me  to  stay  till  he  formed  his  jury  ;  1  was  not  willing  to  take  the  re¬ 
sponsibility.  and  I  came  up  to  the  Hall  and  found  Doctor  Mott,  who 
went  down  to  the  store,  and  after  fie  had  got  a  case  of  instruments, 
we  examined  the  body.  The  external  wound  was  about  an  inch  in 
length,  about  the  ninth  and  tenth  ribs  ;  its  direction  was  inward, 
upward,  and  forward.  There  was  a  rib  wounded,  1  think  the  tenth  ; 
a  very  small  part  of  it  was  fractured  off — a  very  small  splinter. 
There  was  a  dent  in  the  lower  part  of  the  breastbone.  The  wound 
entered  about  two  inches  from  the  backbone,  and  went  in  about  nine 
or  ten  inches.  I  am  not  certain  as  to  which  rib  was  wounded,  I  ra¬ 
ther  think  it  was  the  tenth  rib.  I  was  on  the  right  side  of  the  body, 
and  I  think,  when  I  introduced  my  linger,  it  was  the  lower  rib. 

Here  the  testimony  of  the  witness  ended,  and  some  conversation 
took  place  between  the  members  of  the  court,  when  the  mayor 
spoke  to  the  jury,  observing  to  them,  that  from  the  great  length  of 
the  examinations  and  variety  of  testimony,  and  number  of  witnesses, 
it  would  be  impossible  to  get  through  the  trial  without  further  ad¬ 
journments  ;  and  it  wmuld  be  difficult  to  keep  so  good  order  among 
so  great  a  crowd,  if  they  continued  sitting  through  the  night.  He 
thought,  however,  that  the  jury  were,  and  ought  to  be  consulted, 
and  the  court  were  willing  to  yield  to  their  convenience.  If,  how¬ 
ever,  it  was  no  greater  hardship  to  them  to  continue  sitting  till  day¬ 
light,  and  then  to  adjourn,  it  would  give  the  court  a  better  oppor¬ 
tunity  of  considering  the  mass  of  testimony  offered,  and  assisting  the 
jury  in  their  enquiries. 

To  this  the  jurors  all  readily  assented  ;  and  the  mayor  then  men¬ 
tioned  that  an  attempt  had  been  made  to  get  a  letter  in  to  one  of  the 
jurors,  which  was  an  act  of  great  impropriety.  The  sheriff  stated 
the  difficulty  if  the  jury  were  at  liberty  to  prevent  communications 


71 


with  them.  The  mayor  observed,  that  he  was  willing  to  trust 
much  to  the  discretion  of  the  jury,  for  we  were  all  equally  inte¬ 
rested  in  the  administration  of  justice,  and  an  impartial  trial  in  every 
case. 

One  ofthe  jurors  observed,  that  it  was  the  particular  wish  ofthe 
ury,  that  the  strictest  care  should  be  taken,  and  guard  kept. 

Thirteenth  Witness  for  the  Prosecution — Dr.  John  JVelson. 
Witness.  On  the  day  when  Mr.  Stoughton  received  the  wound, 
was  called  on  by  Mr.  Phelps,  to  go  with  him  to  a  person  that  had 
eceived  a  wound.  I  saw  Mr.  Stoughton  lying  in  a  store,  and  my 
rst  impression  on  seeing  him  was,  that  he  was  mortally  wounded  ; 
nd  I. at  once  expressed  that  opinion  to  Mr.  Phelps,  for  the  counte- 
ance  of  the  deceased  rvas  fully  indicative  of  the  fact ;  and  he  in- 
eed  died  a  few  moments  afterwards.  It  was  a  w-ound  about  half 
n  inch  in  length,  given  by  some  penetrating  instrument. 

Van  Wyclc.  Suppose  a  wound  between  the  ninth  and  tenth  ribs,  and 
lat  the  instrument  should  take  the  rib  so  as  to  penetrate  it  a  little, 
id  afterwards  to  pass  through  the  heart  and  reach  the  breastbone, 
)uld  all  that  be  done  by  the  strength  of  an  ordinary  man  ? 

A.  I  think  a  man  of  ordinary  strength,  in  a  paroxysm  of  rage, 
hich  adds  much  to  muscular  force,  could  with  such  an  instrument 
■  that  penetrate  to  the  breastbone. 

Q.  Would  it  vary  your  opinion  if  the  instrument  touched  the  up- 
]:r  side  ot  the  ninth,  or  the  lower  side  of  the  tenth  rib  ? 

A.  It  would  not.  I  think  a  man  of  ordinary  strength  could  give 
;ch  a  blow. 

Q.  If  the  instrument  was  lodged  in  the  body,  in  that  direction, 
f  d  to  that  depth,  would  it  be  likely  to  fall  out  of  itself? 

A.  If  it  was  not  fixed  in  the  breastbone  it  might.  The  adhesion 
t  the  skin  would  oppose  the  principal  impediment  to  its  falling  out, 
btthe  head  of  the  instrument  I  perceive  is  heavy.  There  is  very 
lile  between  the  rib  and  the  breastbone  to  prevent  it. 

5-  Would  not  the  heart  retain  it  ? 

d.  The  heart  is  a  fleshy  substance,  and  might  cause  some  re- 
si  ance,  but  I  did  not  make  any  particular  observation  :  my  hurry  was 
Uget  away  ;  the  man  being  dead,  I  could  be  of  no  further  use  ;  I 
s'j  must  die  in  a  few  minutes.  My  first  inquiry  was  about  the 
P'  son  who  killed  him. 

* 

Cross-examined  by  Emmet. 

left  him  alive.  I  did  not  stay  more  than  two  or  three  minutes, 
i  appeared  to  breathe  with  very  great  difficulty,  like  a  man  who 
ia  both  the  lobes  of  the  lungs  perforated.  When  Mr.  Phelps 

;ae  to  my  office,  I  went  immediately  with  him,  and  found  him  in 
h  state. 

mmet.  When  you  talk  of  a  man  in  a  passion  acquiring  strength 
o  npel  a  weapon,  does  not  that  strength  consist  in  the  increased 
e  city  ? 

m  I 


72 


A.  The  velocity  increases  the  force. 

Q.  In  order  to  give  that  force,  must  not  the  velocity  be  first  ac 
quired,  and  to  acquire  that,  must  there  not  be  some  space  ? 

A.  Undoubtedly. 

Q.  Then  there  must  have  been  room  for  that  projectile  force  t< 
be  acquired,  before  the  point  met  the  rib  ?  and  if  there  had  beei 
no  reach  to  acquire  momentum,  would  not  the  rib  then  resist  ; 
mere  push,  or  would  it  readily  be  splintered  by  that  action  ? 

Hie  Mayor.  Do  we  understand  Mr.  Emmet’s  question  to  be  this 
Suppose  the  instrument  met  the  rib  before  it  had  acquired  motior 
whether  it  would  have  so  much  force  ? 

Witness.  I  understand  the  question  to  be,  whether  if  the  first  irr 
pression  is  without  any  range,  but  merely  applied  as  a  push, 
would  splinter  the  bone  as  readily  ?  1  think,  in  that  case,  the  fore 
would  be  much  less  effective. 

Emmet.  Notwithstanding  the  impediment  which  the  skin  an 
the  heart  might  oppose  to  its  disengaging  itself,  would  not  th 
wedge  form  of  it  be  an  impelling  power  to  incline  it  to  descend,  pai 
ticularly  when  lubricated  by  the  juices  of  the  body  and  the  blooi 
and  influenced  by  the  weight  of  this  handle  ? 

A.  I  think  its  form  would  aid  in  throwing  it  out. 

Emmet.  The  position  given  to  the  parties  is  opposite  one  to  th 
other.  Would  it  not  be  hard,  face  to  face — would  it  not  be  vei 
difficult,  if  held  thus,  (with  the  blade  downwards)  to  inflict  th 
wound  ? 

A.  If  it  was  held  that  way,  I  think  it  would  he  nearly  impossibl 

Q.  How  would  you  apply  it  near  the  backbone,  and  force  it  uj 

A.  It  was  not  near  the  backbone. 

Mr* Fan  Wyck  here  stood  up,  and  the  doctor  taking  the  weapi 
for  the  purpose  of  illustrating. 

Witness.  That  position  given,  and  the  direction  of  the  wound.  . 
do  not  think  it  could  reach  the  breastbone. 

Q.  Is  there  any  way,  in  standing  face  to  face,  that  it  could 
done  ?  *  I 

A.  If  the  instrument  was  held  this  way,  (in  the  manner  of 
sword)  it  would  be  very  possible. 

Q.  Would  there  not  have  been  a  want  of  strength  from  the  ws 
of  room  to  draw  the  blow,  as  the  arm  would  be  at  its  lull  extent  b 
fore  the  point  could  enter  the  body? 

A.  I  think  it  might  be  done  holding  it  in  that  way,  if  there  w 
strength  enough. 

Q.  By  the  Mayor.  Suppose  the  back  of  the  adverse  party  w 
exposed  by  stooping,  would  it  not  facilitate  that  direction  ? 

A.  If  the  instrument  was  held  this  wray,  (downwards,  the  butt  nr 
the  thumb)  it  would,  no  doubt,  be  more  easy. 

Q.  If  the  wound  was  given  when  a  person  was  falling  back  wan 
instead  of  forwards',  would  not  the  direction  be  altogether  diflerer 
Would  it  touch  the  breastbone  ? 

A.  It  would  be  different. 


73 


Thirteenth  Witness  for  the  Prosecution — Doctor  Francis  Eloy  Berge , 

Van  Wyck.  Suppose  a  wound  given  with  this  instrument,  com¬ 
mencing  between  the  ninth  and  tenth  rib,  rather  towards  the  back, 
and  hen  through  the  apex  of  the  heart  till  it  touched  the  breast¬ 
bone — could  it  have  been  done,  do  you  suppose,  by  the  force  of 
an  ordinary  man  ? 

A.  I  think  it  is  possible. 

Cr^ss-examined  by  Emmet . 

Q.  Would  not  that  depend  upon  the  position  of  the  parties  ? 

A.  Yes,  sir,  much  would  depend  upon  the  position  of  the  parties, 

Q.  If  they  were  directly  opposite  to  each  other  ? 

The  Mayor.  I  now  submit  my  opinion  to  the  good  sense  of  Mr. 
Emmet.  A  physician  is  very  properly  called  in  a  court  of  justice 
to  tell  the  nature  and  direction  of  a  wound,  and  its  consequences. 
'But  to  enquire  of  him  how  muscular  strength  may  be  applied,  how 
men  can  use  their  limbs,  and  touching  the  position  of  parties  in  a 
fight,  is  what,  I  think,  the  jury  will  not  pay  much  attention  to,  being 
equally  capable  of  judging  themselves. 

Emmet.  The  question  touching  muscular  strength  was  first  pufc 
by  the  other  side,  and  therefore  I  continued  the  inquiry.  I  feel, 
the  weight  of  what  the  court  has  said,  and  bow  with  respect :  but 
;he  direct  examination  has  been  at  least  as  improper  as  the  cross. 

The  Mayor.  You  will  find  that  in  the  case  of  Selfridge  this  very 
question  frequently  came  up,  and  it  was  decided  to  be  the  province 
of  the  jury,  and  that  it  did  not  belong  to  the  examination  of  doc¬ 
tors. 

Emmet.  Let  no  conclusion  then  be  drawn  from  my  not  asking 
such  questions,  and  I  am  content. 

The  Mayor.  It  would  be  very  unreasonable  that  th^re  should,  for 
ill  such  matters  of  argumentation  are  subjects  of  reasoning  for 
he  counsel  to  remark  upon,  but  not  for  witnesses  to  argue,  who 
ire  called  merely  as  experts.  [See  Self  ridge's  Trial,  p.  59,  60,  61.) 


Tere  the  Prosecutor  rested  his  case,  and  Mr.  Hoffman  opened  the  case 
of  the  Prisoner,  as  follows  : 

rlffman. — May  it  please  the  Court. 

I  do  not  know,  gentlemen  of  the  jury,  that  ever  I  was  concerned 
in  a  cause  of  deeper  interest  than  the  present.  With  every  mem- 
ter  of  this  community,  with  the  prisoner  himself,  1  do  most  sin- 
erely  lament  the  occasion  that  brings  me  here.  Mr.  Stoughton,  a 
oung  gentleman  of  great  professional  promise,  who  had  every  rea- 
on  to  count  on  length  of  prosperous  days,  is  unfortunately  cut  off  in 
he  flower  of  his  age.  by  an  untimely  death.  A  father  deprived  of  a 
hild  on  whom  he  fondly  floated  ;  and  a  mother  of  a  son,  in  whom 
/ere  placed  her  dearest  hopes  !  Can  a  case  be  imagined  more  cal- 
ulated  to  awaken  our  sympathy  ?  Turn  to  the  situation  of  the  pri- 
oner :  a  man  in  the  same  grade  of  society  with  the  deceased  ; 

10 


son  equally  dear  to  a  parent,  a  brother  to  a  sister.  Like  the 
mother  of  the  unfortunate  Stoughton,  so  is  the  mother  of  the  unfor¬ 
tunate  prisoner  ;  so  is  that  sister,  who  clings  to  him  with  the  mos; 
dev  oted  affection  ;  and  so  are  the  feelings  of  that  brother,  whose  life 
has  been  passed  in  the  service  of  his  country,  and  who  now  anxious¬ 
ly  watches  the  progress  of  this  trial.  Perhaps  a  trial  thus  deeply 
interesting  to  the  public,  to  the  friends  and  relatives  of  the  one, 
and  of  the  other  party,  has  never  been  brought  before  a  jury  of  oui 
country,  I  approach  this  case  with  the  m^re  diffidence,  because 
we  cannot  be  ignorant  of  the  extreme  prejudices  which  have  beet 
iucited.  God  forbid  I  should  charge  them  to  the  affectionate  paren 
of  Mr.  Stoughton.  But  rumours,  newspapers,  even  pamphlets  have 
all  been  used  and  busy  to  inflame  public  sentiment,  and  to  create  ; 
premature  judgment  against  my  unfortunate  client ;  thus  prostrating 
the  first  principle  of  our  law,  by  making  the  presumption  of  guilt  t( 
precede  the  investigation  of  a  judicial  tribunal.  Is  there  a  mai 
who  hears  me,  and  who  did  not  yield  his  judgment  captive  to  the  firs 
rumours,  and  believe  that  a  wilful  assassination  had  been  commit 
ted  ?  and  has  not  the  testimony  even  for  the  prosecution  silencec 
such  rumours  forever  ?  The  conduct  of  the  prisoner,  as  well  be 
fore  as  immediately  after  the  conflict,  evinces  his  ignorance  even  o 
the  existence  of  a  wound  ;  and  you  will  find  in  his  subsequent  cod 
duct,  confirmation  strong  of  his  entire  innocence. 

Indignant  at  the  charge,  he  willingly  surrenders  himself  to  thi< 
judgment  of  the  law,  for  he  would  rather  suffer  death,  than  liv<l 
under  the  aspersion  of  being  a  deliberate  murderer  or  an  assassin 
He  felt  the  full  force  of  his  own  misfortune,  and  wept  in  his  hear 
at  the  fatal  catastrophe.  He  knew  his  own  innocence,  and  he  a 
once  decided,  to  encounter  public  prejudice  at  the  hazard  of  cha 
racier,  imprisonment,  nay,  life  itself. 

Gentlemen,  you  are  not  only  to  ascertain  facts,  but  it  is  your  dot; 
to  understand  the  principles  of  criminal  law  applicable  to  thi 
transaction  ;  for,  in  every  criminal  case,  the  jury  are  empbaticall 
judges  of  law  as  well  as  of  fact.  It  is  the  duty  of  the  court  to  ad 
vise  you  as  to  law,  but  the  decision  must  still  be  your  own,  accord 
ing  to  your  best  judgments  and  the  dictates  of  your  own  consciences 

Hereafter,  1  shall  offer  to  your  consideration  the  law  on  the  sub 
ject,  but  I  first  call  your  attention  to  a  brief  review  of  the  testiinon 
already  given  for  the  prosecution.  It  must  have  created  some  sur 
prise  and  much  doubt  in  your  minds,  to  perceive  that  all  the  wit 
nesses  materially  differ  in  their  relation  ;  and  yet,  upon  proof  s< 
contradictory,  you  are  to  find  the  deceased  came  by  his  death  in- thi 
manner  charged  in  the  indictment ;  that  is  to  say,  that  Mr.  Goodxi 
did  slab,  penetrate ,  and  thrust  the  dagger,  which  he  held  in  his  hanc 
into  the  body  of  Mr.  Stoughton,  and  so  did  kill  him.  Admitting  a 
that  has  been  testified,  can  you  pronounce  that  Mr.  Stoughton  cam 
to  bis  death  in  the  manner  charged  ?  If  not,  the  prisoner  is  entitle 
to  acquittal.  Suppose  the  sword  became  entangled  in  the  clothes  ( 
the  deceased,  or  was  dropped  by  the  prisoner,  and  in  either  case  th; 
Mr.  Stoughton  fell  upon  it,  the  indictment  is  unsupported.  1  sail 


ihat  I  should  call  your  attention  to  a  brief  review  of"  the  testimony, 
because  it  will  assist  you  the  better  to  understand  and  apply  the 
principles  of  law,  as  1  shall  hereafter  urge  them. 

The  first  witness  was  Mr.  Clark,  a  gentleman  of  strict  probity, 
and  careful  and  anxious  to  be  accurate  in  his  testimony.  He  was 
near  the  parties,  and  states,  that  Jie  distinctly  saw  the  blow  which 
occasioned  the  fall :  and  no  other  witnesses  except  two,  who  were 
at  a  distance  on  the  opposite  side  of  Broadway,  have  pretended  to 
have  seen  that  blow.  Mr.  Clark  states,  that  it  was  the  last  blow 
previous  to  the  fainting  of  Mr.  Stoughton,  and  that  if.  was  given 
with  the  right  hand,  without  any  weapon  being  then  in  it ;  and  that 
10  other  blow  was  given  by  Mr.  Goodwin  while  the  deceased  was 
an  the  ground,  after  he  rose,  nor  when  he  fainted.  Unless  this 
;>ositiv«Mestimony  is  rejected,  we  must  believe  that  this  blow  was 
>iven  after  the  sword  was  dropped  by  Mr.  Goodwin.  It  is  impos- 
lible  that  the  blow  could  be  given,  and  the  sword  thrust  at  one  and 
he  same  instant  of  time.  Mr.  Clark  was  nearer  than  any  other 
witness,  and  had  the  best  opportunity  to  see  all  the  circumstances. 

When  the  gentlemen  on  the  opposite  side  of  Broadway  spoke  of 
he  blows  indicted  upon  Mr.  Stoughton  while  on  the  ground,  they 
vere  certainly  mistaken.  Mr.  Clark  was  near  him — saw  him  fall — 
dvanced  directly  towards  him — saw  no  weapon  used,  nor  blows 
;iven  when  he  was  down.  It  is  owing  to  that  error  and  mistake  so 
aturally  to  be  expected  in  human  testimony,  on  occasions  like  the 
■resent,  and  in  moments  of  great  surprise,  that  we  must  impute  the 
ontradiction  in  the  statement  of  the  witnesses.  I  admit  that  two 
f  the  customhouse  clerks  say,  they  saw  the  prisoner  strike  the 
eceased  while  tying  on  the  ground,  several  times,  with  the  handle 
f  the  swordcane.  Mr.  Ball,  another  witness,  thinks  it  was  only 
nth  the  hand  :  but  if  we  believe  Mr.  Clark,  not  only  was  no  blow 
iven  while  the  deceased  was  on  the  pavement,  but  none  could 
ave  been  given  with  the  cane,  as  is  testified  by  two  witnesses,  be* 
ause  at  that  time  Mr.  Goodwin  had  not  a  cane  in  his  hand.  The 
:stimony  of  Mr.  Clark  too,  in  every  essential  point,  is  corro- 
orated  by  that  of  Mr.  Weed.  He  was  standing  on  the  platform  of 
is  store  door ;  saw  the  cane  pointed  towards  Mr.  Stoughton  ;  saw 
lr.  Goodwin  proceeding  down,  and  Mr.  Stoughton  up  Broadway, 
fter  passing  each  other  at  some  distance,  saw  Mr.  Stoughton  re- 
irn,  and  the  first  blow  given  by  him  was  returned  by  the  prisoner 
ith  the  small  end  of  his  cane  :  the  scabbard  flew  off,  and  the  wit- 
ess  thinks  that  blow  knocked  Mr.  Stoughton  down.  The  witness 
this  is  mistaken  ;  and  it  will  be  recollected,  that  he  stated  that  a 
1  owd  collected,  and  that  persons  were  between  him  and  the  de¬ 
based  ;  and  that  he  saw  no  other  blows,  although  near  half  a  mi- 
nte  elapsed  before  Mr.  Stoughton  fell.  Now  if  the  cane  had 
]  locked  him  down,  he  would  have  fallen  instantly-  Mr.  Clark 
tys  the  blow  which  felled  Mr.  Stoughton  was  given  by  the  hand  ; 

<  course  there  must  have  been  intermediate  blows  between  the 
s’oke  with  the  cane  spoken  of  by  Mr.  Weed,  and  the  blow  with 


76 


the  hand  testified  to  by  Mr.  Clark ;  and  all  the  other  witnesses  de¬ 
clare  that  several  and  mutual  blows  passed  between  the  parties. 

But  (tutting  the  testimony  of  Mr.  Clark  and  Mr.  Weed  out  of  the 
question,  how  stands  the  testimony  of  the  other  witnesses  ?  Mr. 
Haycock  saw  a  scuffle,  two  gentlemen  fighting,  mutual  blows  pass¬ 
ing,  and  whilst  Mr.  Stoughton  was  down  Mr.  Goodwin  struck  him 
several  times  on  the  head  with  the  but  end  of  the  cane.  This  is  a 
palpable  error.  Besides  the  positive  testimony,  the  intrinsic  evi¬ 
dence  of  the  case  proves  it  so.  The  prisoner  could  not  strike 
such  blows  with  so  great  force,  nor  could  any  human  being  receive 
such  blows  with  the  but  end  of  that  cane,  on  the  face  or  on  the 
head,  and  yet  no  mark  or  contusion  appear.  And  we  find  that 
when  the  deceased  was  examined,  the  effect  of  such  blows  was  not 
discovered,  and  no  bruises  or  contusions  appeared  on  th^  face  01 
on  the  head.  In  the  very  nature  of  things,  therefore,  it  is  impos¬ 
sible  that  such  blows  could  have  been  given. 

The  witnesses  then  who  have  thus  testified,  are  mistaken.  Thej 
do  not  mean  to  deceive  or  misrepresent  ;  but  they  were  under  ; 
delusion  of  mind,  occasioned  by  the  agitation  of  the  moment,  am 
their  imagination  has  given  body  and  shape  to  circumstances  whicl 
never  existed,  but  which  they  honestly  believe  to  have  taken  place 
And  so  it  will  always  be  in  affrays  like  the  present,  and  in  trials  o 
this  nature.  Errors,  mistakes,  and  contradictions,  will  ever  occur 

Look  at  the  case  of  Mr.  Selfridge — the  most  remarkable  one  ii 
the  annals  of  our  criminal  jurisprudence. 

He  went  armed,  at  noonday,  in  the  public  streets.  He  used 
pistol  to  kill  Mr.  Austin,  who  had  assaulted  him,  or  was  ap 
proaching  so  to  do — yet  that  transaction,  thus  exposed  to  publi 
view,  was  stated  by  the  witnesses  in  the  most  extraordinary  man 
ner.  Conjecture  usurped  the  place  of  fact;  and,  amid  the  conflic 
of  oaths,  the  honest  juror  was  left  without  a  resting  place  for  hi 
judgment.  Men  of  as  high  honour  as  any  in  the  town  of  Bostoi 
swear  positively  to  circumstances  in  direct  contradiction  to  on 
another.  In  such  a  chaos  of  proof,  there  was  no  testimony  on  tl 
accuracy  of  which  the  jury  would  safely  repose  their  conscience? 
they  were  left  to  the  internal  evidence  of  the  transaction  to  fir 
out  the  truth.  The  jury  in  that  case  knew,  that  a  public  proseci 
tor  must  fasten  the  charge  upon  the  accused,  by  positive  and  ce 
tain  proof ;  and  they  wisely  and  justly  concluded,  that  it  was  r 
reason,  because  Austin  had  lost  his  life,  that  they  should,  of  nece , 
sity,  deprive  Selfridge  of  his  liberty  and  character.  Could  v 
indeed,  in  this  case,  restore  the  dead  to  life,  by  inflicting  punisl 
rnent  on  the  survivor,  there  would  be  a  motive  for  convictio 
Would  to  God  your  verdict  of  guilty  would  create  this  miracle 
Then  would  the  unfortunate  prisoner  submit  without  a  mnrmui 
nay,  he  would  rejoice  at  his  own  condition,  and  willingly  suffer  t! 
punishment,  how'ever  severe,  inflicted  by  the  laws  of  liis  count: 
for  the  crime  of  manslaughter. 


77 


J  assume  then  the  fact,  and  with  confidence,  that,  at  the  time  of 
the  blow  which  felled  the  deceased,  the  prisoner  had  no  weapon 
in  his  hand  :  and  it  is  not  pretended,  nor  can  it  be,  that  before  Mr. 
Stoughton  thus  fell,  he  received  the  mortal  wound  :  and  it  is  cer¬ 
tain,  that  after  he  rose,  and  before  he  sunk  to  rise  no  more,  the 
distance  between  the  deceased  and  the  prisoner  rendered  it  impos¬ 
sible  for  the  latter  to  give  the  wound,  even  if  the  sword  had  been 
in  his  hand. 

To  proceed — Mr.  Weed  says,  after  Mr.  Stoughton  fell,  he  saw 
both  parts  of  the  cane  on  the  ground  ;  and  after  Mr.  Stoughton  had 
fainted,  the  witness  saw  the  blade  part  in  the  hands  of  the  prisoner. 
And  Mr.  Clark  establishes,  as  I  have  before  shown,  that  it  was  not 
in  the  hand  of  the  prisoner  when  the  blow  was  given,  nor  until 
after  the  fainting. 

How  came  he  in  possession  of  it  after  the  contest  ?  The  answer 
is  obvious — it  was  picked  up  by  some  bystander  and  handed  to  him. 
He  looks  at  it  with  surprise,  but  manifests  no  symptoms  of  con¬ 
sciousness  that  he  had,  in  any  manner,  used  it.  If  he  had  felt  any 
self-accusation  of  having  used  it,  he  would  have  retreated  without 
receiving  it,  or  have  concealed  from  every  accusing  eye,  its  size,  its 
shape,  and  its  deadly  power.  But  he  seeks  no  concealment — lie 
leaves  it  in  the  store  of  Mr.  Weed,  or  delivers  it  to  some  person 
near  him  ;  and  its  very  production  in  this  court,  proceeding  from 
his  own  voluntary  act,  is  the  strongest  proof  of  his  own  ignorance 
of  the  cause  of  this  fatal  accident,  and  disproves  every  presumption 
of  design  or  of  intentional  guilt. 

After  the  delivery  of  the  dagger,  what  was  his  conduct?  Does 
1  he  fly  precipitately  ?  No — He  deliberately  seeks  for  his  hat,  which 
had  been  knocked  off  in  the  scuffle,  as  a  man  unconscious  of  having 
mortally  wounded  a  fellow-being,  and  calmly  walks  off  with  his 
friend.  Firm  and  confiding  in  the  innocence  of  hisowm  heart,  and 
even  ignorant  of  any  serious  injury  sustained  by  Mr.  Stoughton,  he 
leaves  behind  him  this  very  instrument  of  death,  as  testimony 
against  him  on  this  day’s  trial.  Let  us  proceed  a  little  farther  into 
the  testimony  i  The  more  witnesses  the  prosecutor  produces,  the 
greater  will  appear  the  contradictions  in  the  evidence.  The  orange- 
man  agrees  with  Mr.  Clark,  as  to  the  fall  near  the  curbstone,  but 
contradicts  him  in  stating,  that  blows  were  struck  when  the  de¬ 
ceased  was  on  the  ground.  But  the  most  palpable  and  manifest 
contradiction  is,  that  he  states  all  the  blows  to  have  been  on  the 
part  of  Mr.  Goodwin,  and  not  a  single  one  by  Mr.  Stoughton — that 
he  did  not  offer  to  strike,  and  was  the  whole  time  retreating  and 
warding  off  the  blows.  He  stands  alone.  Every  other  witness 
testifies  to  the  contrary.  The  hat  of  Mr.  Goodwin  was  knocked 
off  by  a  blow  from  the  deceased,  and  a  respectable  witness  has 
sworn,  that  it  was  difficult  to  say  who  had  the  best  of  the  battle — Is 
he  not  correct  ? 

Mr.  Stoughton,  a  young  man  of  great  activity,  in  stature  and  in 
strength  equal  to  his  adversary,  after  passing  him,  returns,  pursues 
him,  and  commences  the  attack,  by  giving  the  first  blow.  What 


78 


confidence  can  there  be  placed  on  the  accuracy  of  a  witness  who 
swears  Mr.  Stoughton  never  struck  a  blow,  and  that  the  violence 
was  all  on  the  part  of  Mr.  Goodwin  ?  It  is  impossible  that  the  re¬ 
lation  of  this  witness  can  be  true. 

In  what  way  then  did  this  misfortune  happen  ?  I  call  it  misfor¬ 
tune,  or  accident,  for  the  testimony  already  produced,  leaves  no 
doubt  that  the  prisoner  never  plunged  the  sword  into  the  body  of 
Mr.  Stoughton  ;  and  lor  the  purpose  ol  the  defeuce,  it  is  immaterial 
'  how  otherwise  the  wound  was  received.  That  the  deceased  fell 

on  the  sword,  is  almost  morally  certain,  from  the  testimony  of  Dr. 
Mott,  who  swears  that  in  the  situation  of  the  parties,  he  judged  it 
nearly  impossible  the  wound  could  have  been  given  by  Mr.  Good¬ 
win  ;  and  from  its  direction  and  course  he  concluded  Mr.  Stough¬ 
ton  must  have  fallen  ou  the  weapon.  Dr.  Mott’s  character  is  known  ; 
he  ranks  at  the  head  of  his  profession  as  a  surgeon  ;  his  talents  and 
judgment  are  confessed  by  all,  and  his  integrity  and  candor  are 
questioned  by  none. 

I  have  thus,  gentlemen,  attempted  fairly  and  candidly  to  present 
to  you  the  substance  and  character  of  the  testimony  already  given, 
and  my  view  of  it  will  be  greatly  strengthened  by  adverting  lor  a 
few  minutes  to  the  situation  of  the  parties  from  their  first  meeting 
until  Mr.  Goodwin  freely  surrendered  himself  to  the  officers  of  our 
police.  In  no  part  of  his  conduct  will  you  find  him  suffering  under 
a  sense  of  guilt,  or  apprehension  of  punishment,  or  fearing  a  full 
and  complete  investigation.  He  even  courts  a  public  trial.  Can 
it  be  true,  therefore,  that  he  sought  a  quarrel,  or  began  an  affray, 
as  has  been  represented,  in  our  public  streets  ? 

Of  the  causes  or  merits  of  the  former  disagreement  between  the 
parties,  1  say  nothing.  They  are  not  evidence  on  this  trial,  and  it 
will  not  be  permitted  that  we  enter  into  them  ;  our  attention  must 
be  confined  to  the  transactions  of  the  day.  The  parties  passed 
each  other,  and  it  is  clear,  that  whatever  then  took  place,  did 
not  provoke  the  immediate  resentment  or  excite  the  anger 
of  Mr.  Stoughton  :  he  crossed  a  whole  street  before  he  returned 
and  assaulted  Mr.  Goodwin.  It  was  not  then  the  pointing  of  the  cane 
that  called  forth  his  wrath  ;  if  it  were  so,  the  moment  of  the  insult 
given,  w'ould  be  the  moment  of  the  insult  resented.  Mr.  Stoughton, 
therefore,  had  not  the  excuse  of  acting  upon  the  provocation  pre¬ 
tended.  Suppose  one  of  you  had  been  insulted  by  contemptuous 
language  or  other  indignity,  would  you  have  pursued  your  way 
step  after  step,  yard  after  yard,  before  you  noticed  the  offence  ? 
No,  gentlemen  :  such  insult,  by  every  law  and  principle  of  our  na¬ 
ture,  if  noticed  at  all,  would  produce  sudden  retaliation  ;  and  there¬ 
fore  I  am  constrained  to  say,  it  was  the  bitterness  of  previous  quar¬ 
rel  that  occurred  to  the  mind  of  Mr.  Stoughton,  aroused  his  re¬ 
sentment,  and  occasioned  his  return  and  deliberate  attack.  The 
opportunity  seemed  to  invite  it,  an  excuse  was  given,  and  he  glad¬ 
ly  embraced  it.  After  thev  had  passed,  Mr.  Goodwin  proceeds  di¬ 
rectly  towards  his  place  of  residence,  and  without  looking  back  as 
if  wishing  or  expecting  an  attack.  Mr.  Stoughton  returns,  and 


79 


commences  the  affray  by  a  blow.  Can  it  then  be  said,  as  it  has 
been  said,  published,  and  circulated,  for  the  purpose  of  pressing 
down  the  prisoner  by  a  load  of  prejudice,  that  he  commenced  the 
affray?  No.  Stoughton  passed  on — Stoughton  returned — Stoughton 
began  the  attack,  and  his  was  the  first  unlawful  act. 

Suppose  death  had  not  ensued,  and  you  were  now  trying  an  ac¬ 
tion  against  Mr.  Goodwin  for  an  assault  and  battery.  Upon  the 
evidence  now  produced,  his  defence  must  have  beeu  sustained,  and 
his  whole  conduct  would  have  been  justifiable,  as  long  as  he  con¬ 
fined  himself  to  repel  the  attack  biow  for  blow  ;  and  the  use  of  his 
cane  would  not  have  rendered  it  less  so.  But  mark  me — I  am  not 
justifying  the  intentional  use  of  the  weapon  ;  for  if  he  did  stab  with 
it,  although  death  did  not  ensue,  then  I  admit  he  pursued  the  com¬ 
bat  for  the  purpose  of  deadly  revenge.  But  fortunately  for  his  own 
reflections,  the  tranquillity  of  his  own  heart,  and  his  just  acquittal  at 
:his  time,  no  such  motive  existed,  and  the  charge  of  stabbing  is 
baseless  and  untrue. 

I  shall  now,  gentlemen,  call  your  attention  to  the  law.  I  know 
hat  to  examine  law  cases  and  authorities,  is  ever  irksome  to  a  jury: 
/et,  give  me  a  patient  hearing,  and  I  do  not  despair  of  imparting  to 
mu  a  clear  and  distinct  knowledge  of  the  principles  of  criminal  law, 
tpplicable  to  the  interesting  question  you  now  have  to  decide.  I 
tave  already  stated,  that  as  far  as  the  blows  were  returned,  they 
rere  not  unlawful  ;  and  I  assert,  if  death  ensued  in  a  way  not  con¬ 
noted  with  the  act  of  Mr.  Goodwin,  nor  with  his  intention,  it  wa9 
n  accident,  and  an  homicide  by  misadventure,  for  which  he  is  in  no 
use  responsible. 

You  are  trying  Mr.  Goodwin  on  an  indictment  for  manslaughter, 
nd  it  is  your  duty  to  understand  the  nature  of  this  crime,  to  enable 
ou  justly  to  decide  on  his  guilt  or  innocence. 

Perhaps  in  no  trial  in  England  or  this  country',  has  the  learning 
pon  homicide  been  displayed  with  more  ability  than  in  the  case  of 
Ir.  Selfridge,  already  alluded  to  ;  a  case  in  many  respects  resem- 
ling,  and  some  of  its  striking  features  similar,  to  the  present  one. 
here  too  parents  wept  over  the  untimely  end  of  a  promising  son, 
ablic  sympathy  was  equally  great,  prejudices  were  strong  and  ex- 
nsive,  and  like  the  present  case,  were  excited  by  the  aid  of  partial 
id  illiberal  publications  ;  crowds  assembled  during  the  trial,  but 
ie  jury  dared  to  acquit  Mr.  Selfridge.  All  outdoor  rumours  were 
irgotten  in  the  jury-box  ;  no  former  impressions  were  suffered 
(ere  to  prevail  and  to  bias  the  judgments  of  the  jury  ;  they  heard 
ie  testimony  calmly',  and  judged  the  transaction  as  it  then  appear- 
«  ;  not  as  calumny  and  passion,  or  even  honest  error  and  mistake 
Id  before  represented  it.  Their  verdict  was  the  triumph  of  jus¬ 
te  over  public  opinion  hastily  formed;  it  was  the  dispassionate 
J  Igment  of  the  mind,  uncontrolled  by  the  influence  and  clamours 
'•ignorance  and  passion  ;  unmoved  by  the  heartfelt  commiseration 
f  the  bereaved  parents,  relatives  arid  friends,  of  the  deceased. 


80 


What  1?  the  crime  of  manslaughter  ?  It  is  not  every  killing  of  i 
human  being  by  the  act  of  man  that  incurs  the  guilt  of  this  crime 
Nor  am  1  prepared  to  admit  as  an  universal  principle  of  our  law 
that  if  death  ensues  by  accident  and  unintentionally,  trom  the  com 
mission  of  a  mere  civil  (trespass,  however  slight  and  excusable 
such  death  must  be  adjudged  manslaughter.  I  am  aware  that  man; 
authorities  in  the  English  courts  seem  to  carry  the  doctrine  ol  ho 
micide  to  this  severe  extent.  In  this  state  we  ought  to  adopt  thi 
principle  with  great  eare  and  discrimination,  and  with  such  mercilu 
qualitications,  as  the  different  degrees  of  punishment  in  the  tw 
countries  justly  require.  In  England,  the  crime  ol  manslaughtei 
in  its  mitigated  form,  carries  with  it  no  infamy.  Its  punishment  i 
almost  nominal — seldom  more  than  a  tine  ol  a  lew  shillings,  follow 
ed  by  a  pardon.  Even  in  its  most  aggravated  character,  when 
approaches  more  to  the  crime  of  murder,  the  punishment  is  tint 
and  not  exceeding  a  year’s  imprisonment.  Hence  it  is,  that  th 
tribunals  of  England  have  always  been  inclined  to  consider  ever 
species  of  homicide,  below  wilful  murder,  as  manslaughter.  1  h 
same  inducements  to  fritter  away  the  solid  distinction  betwee 
active  guilt  and  an  unfortunate  accident,  exist  not  with  us.  llei 
the  punishment  must  be  at  least  three  years’  imprisonment  in  tl 
state  prison  :  and  whatever  may.  have  been  the  cause,  howevi 
pure  the  heart  and  unintentional  the  act,  there  can  be  no  gradu, 
tion  of  the  offence  :  it  must  be  considered  as  a  crime  of  a  heino: 
dye,  and  the  unfortunate  victim  of  accident  and  chance  must  1 
ruined,  degraded,  and  rendered  infamous.  H  we  adopt,  in  tl 
whole  extent,  the  English  doctrine  of  manslaughter,  in  the  la 
guage  of  Mr.  Justice  Foster,  “we  may  even  aggravate  the  loss 
a  brother,  a  parent,  a  child,  or  wife.”  “  Because,”  says  h 
treating  of  incautious  conduct  occasioning  death,  “  accidents 
this  lamentable  kind  may  be  the  lot  of  the  wisest  and  best  of  mn 
kind,  and  most  commonly  fall  out  among  the  nearest  friends  and  rel 
tives.”  And  the  same  humane  judge  admits  the  rigour  ot  t 
English  law  “  to  border  upon  injustice,  in  cases  where  the  het 
is  free  from  guilt.” 

Let  me  state  a  case,  well  calculated  to  impress  your  minds  wi 
abhorrence  at  the  cruelty  of  a  verdict,  which  in  this  state  wot 
recognise  the  law  of  England  on  the  subject  of  manslaughter, 
husband  finds  a  man  in  the  act  of  adultery  with  his  wife,  and  in  t 
first  transport  of  passion,  kills  him.  In  England,  it  would  be  ip; 
slaughter,  and  a  few  shillings  would  be  the  punishment.  1  mista 
the  character  of  an  American  jury,  if  for  this  violation  ol  all  inoj 
principle  and  duty,  if  for  an  offence  so  grievous  in  the  sight  ot  GU 
and  man — and  if  for  an  injury  so  lasting  and  irreparable,  to  » 
happiness  and  peace  of  an  individual — 1  say,  I  mistake  the  feeliit 
and  character  of  you,  gentlemen  of  the  jury,  if,  in  such  a 
you  would  adopt  the  English  law,  and  by  your  verdict,  find  S 
killing  of  the  adulterer,  a  crime.  Would  you,  in  such  a  case.  c<-| 
demn  to  the  state  prison  a  husband  who  slew  the  robber,  caughty 
the  very  act  of  prostituting,  and  bearing  away  the  richest  prizeftj 


domestic  happiness,  the  chastity  of  a  wife.  It  cannot  be.  Such 
killing,  in  the  judgment  of  heaven  and  ot  man,  would  be  excusable 
homicide. 

I  shall  now,  gentlemen,  examine  the  English  authorities  on  this 
subject,  and  admitting  their  full  force  and  application,  I  assert  with 
confidence,  that,  governed  even  by  these,  the  prisoner  is  to  be 
acquitted. 

First,  I  remark  as  an  universal  proposition,  and  supported  by 
svery  law  case,  that  the  blow,  or  other  act  causing  the  death  of  a  per¬ 
son,  must  have  been  a  voluntary  act.  I  do  not  intend  to  assert  that 
he  act  must  be  intended  to  cause  death,  but  that  the  act  itself,  which 
mwever  unexpectedly  did  cause  the  homicide,  must  have  proceeded 
rom  the  will  and  design  of  the  person  committing  it :  as,  if  two  men  en¬ 
gage  in  a  fight,  and,  in  the  moment  ofheat  and  passion,  a  blowis  given 
vhich  proves  fatal.  It  was  notthe  intentofthe  party  to  kill  jbutyet,  he 
utended  to  give  the  blow,  the  effects  of  which,  unfortunately,  proved 
nortal.  Again,  a  person  shoots  at  the  poultry  of  his  neighbour,  the 
)all  glances  and  kills  a  bystander  ;  the  firing  was  a  voluntary  act — 
>ut  it  was  an  unlawful  act ;  and,  therefore,  the  accidental  Idli¬ 
ng  was  adjudged  manslaughter. 

Now,  before  you  can  apply  the  English  law  in  its  greatest  strict¬ 
ness  to  the  present  case,  you  are  to  be  satisfied  that  Mr.  Goodwin 
id  actually  inflict  the  wound.  I  admit,  that  it  is  not  necessary  he  should 
iave  meditated  the  death  of  Mr.  Stoughton  :  but  I  repeat,  that  to  con- 
titute  the  crime  charged  in  the  indictment,  the  prisonermustbe  found 
p  have  used  the  dagger,  and  in  its  voluntary  use  to  have  given  the 
lortal  stab. 

The  counsel  then  read  to  the  jury  the  definition  of  manslaughter, 
y  Chief  Justice  Parsons.  (Self ridge's  Trial,  p.  6.  Ibid.  Charge  of 
’ourt,  fol.  158.)  He  also  cited,  4  Black.  Corn.  182-11.  2  Chi  tty's 
'riminal  Law,  729.  Foster's  C.  L.  261.  1  East's  C.  L.  244. 

'aylor's  case,  5  Burrows,  2793,  Snow's  case,  1  Leach,  176.  And 
ir  John  Chichester's  case,  from  Foster.  On  all  these  authorities  he 
unmented  at  length,  and  enforced  his  first  position,  that  in  all  of 
lem  there  was  a  wilful  act  on  the  part  of  the  killer,  and  which,  al- 
lough  unintentional,  produced  death.  He  applied  the  principle  of 
ie,e  cases  by  pressing  the  fact,  that  there  w'as  no  evidence  that 
!e  prisoner  ever  gave  the  blow  with  the  sword  ;  nay,  the  testimony 
ghtly  considered  is,  that  he  had  it  not  in  his  hand  whan  the  wound 
as  received.  Suppose  he  had,  yet,  if  not  directed  by  him,  he  must  be 
quitted.  (1  East,  p.  6.  269.)  “  Though  the  weapons  be  of  adanger- 
is  nature,  yet  if  they  be  not  directed  by  the  persons  using  them 
■  ainst  each  other,  and  so  no  danger  to  belreasonably  apprehended,  if 
■ath  casualty  ensue  it  is  but  misadventure.”  “  So,  if  A  assaults  B, 
ho  flies  to  the  wall,  or  falls  holding  a  sword,  knife,  or  pike,  in  his 
and  ;  A  runs  violently,  or  falls  upon  the  knife  of  B  without  any 
trust  or  stroke  offered  at  him  by  B  and  dies  ;  this  is  death  per  in  - 
Jrtunium."  (1  Hale,  480.)  Again,  in  the  same  book,  page  493, 
‘b  having  a  pitchfork  in  his  hand,  A  assaults  B  so  fiercely  that 
f  runs  nP01*  the  pitchfork  of  B  andilies,  B  offering  no  thrust  at 

11 


82 


all  against  A,  it  seems  B  forfeits  no  goods,  because  it  was  the  act 
of  A  himself.” 

Gentlemen,  I  have  read  these  cases  to  you,  that  you  may  ex 
tract  from  them  some  principles  strongly  applicable  to  the  fact) 
of  the  present  case,  even  if  you  should,  from  the  discordan 
evidence  offered,  be  able  to  infer  or  collect,  that  at  the  time  o 
the  wound  received,  the  prisoner  had  the  sword  in  his  hand.  Un 
derstand  me,  gentlemen,  for  it  is  my  object  to  address  you  candidh 
and  frankly,  and  not  to  attempt  to  mislead  your  judgments,  or  ti 
press  any  doctrine  of  law,  beyond  its  fair  and  legitimate  applica 
tion.  If,  therefore,  the  deceased  did  not  commence  the  affray  b; 
the  first  personal  violence,  or  if  the  prisoner  was  not  justifiable  i: 
resistfng  such  violence,  then  the  principles  of  those  authorities  d 
not  apply  ;  but  if  the  unlawful  act  commenced  with  the  deceased 
and  death  casxiallij  ensued,  without  intentional  use  of  the  weapon,  i 
is  but  misadventure  ;  or  if  the  prisoner  held  it  in  his  hand  passively 
and  without  any  thrust  on  his  part,  and  the  deceased,  by  closing  in 
or  otherwise  presses  or  falls  on  it,  comes  to  his  death,  it  is  still 
casualty  or  misadventure.  Gentlemen,  1  have  finished  my  remark 
on  the  law.  I  have  not  entered  into  the  nice  distinctions  which  pre 
vail  in  England  between  the  different  kinds  of  excusable  and  jus 
tillable  homicide,  because  they  are  inapplicable  to  the  criminal  cod 
of  our  country.  Excusable  homicide,  in  England,  is  followed  b 
forfeiture.  We  have  no  forfeiture  here,  and  the  distinctions  in  th 
English  authorities,  on  this  branch  of  the  subject,  serve  tobewildei 
and  not  to  enlighten  us.  My  object  has  been  to  confine  my  remark 
to  the  crime  now  under  consideration,  that  your  attention  may  b 
fixed  to  a  single  point,  and  your  minds  not  perplexed  by  a  display  < 
learning,  which  belongs  not  to  the  immediate'  subject  of  your  inve; 
ligation. 

Gentlemen,  we  shall  now  produce  the  testimony  on  our  part ;  an 
if  you  have  any  doubts  remaining,  they  will  be  removed.  And  n 
man,  who  attends  this  trial,  will  hereafter  regard  the  unfortunal 
prisoner  without  feelings  of  sympathy  and  commiseration.  Evei 
prejudice  will  be  dissipated,  and  every  heart  will  acquit  him  fro 
deliberate  and  wilful  crime.  We  shall  prove  to  you  his  proud  coi 
duct  at  Elizabethtown,  his  voluntary  surrender,  his  boldness  1 
encounter  the  force  and  influence  of  public  clamour  and  private  n 
senlment;  relying  on  the  consciousness  of  his  own  heart,  which  fe 
no  guilt  ;  and  feelingly  alive  to  his  own  character  and  reputatioi 
be  would  not,  by  flight,  confirm  the  calumny  of  his  being  an  assa 
sin  or  murderer. 

He  sought,  therefore,  this  day’s  investigation,  and  threw  bimse 
on  the  decision  of  a  jury  of  his  country,  as  the  protecting  shield 
his  reputation  and  innocence,  in  his  future  walks  through  life.  T 
your  magnanimity, justice  and  firmness,  he  then  appeals:  by  tl 
ties  of  filial  attachment,  which  bind  him  in  reverence  to  an  almoi 
broken-hearted  parent,  who  mourns  in  deep  affliction  over  tl  * 
event,  which,  at  this  hour,  darkens  the  destiny  of  her  son  :  by  tl  | 
fraternal  love  which  unites  him  to  a  sister,  whose  sighs  and  sornn 


83 


have  reached  him  from  afar,  and  whose  only  hope  of  happiness 
hangs  on  the  restoration  of  this  brother,  with  a  character  purified 
and  acquitted  of  the  foul  charge  of  assassination,  he  makes  this 
appeal:  not  to  your  sympathies,  but  he  conjures  you  to  forget  every 
former  prepossession,  and  resisting  public  clamour,  public  preju¬ 
dice,  and  whatever  may  be  the  voice  and  opinion  of  the  multitude, 
that  you  will  dare  to  do  your  duty,  and  to  render  a  verdict  of  ac¬ 
quittal. 

In  doing  so,  I  am  not  asking  you  to  suppress  the  best  feelings  of 
our  nature.  Let  us  weep  for  the  death  of  Stoughton.  1  knew 
him  well.  Let  us  mingle  our  tears  with  the  tears  of  his  deeply  af¬ 
flicted  parents.  And  whilst  with  j'ou,  and  with  me,  the  prisoner- 
sheds  a  tear  over  the  untimely  and  unforeseen  end  of  the  son  of  their 
promise  and  their  hopes — whilst  with  poignant  regret  he  will  ever 
remember  the  disaster  of  that  day,  and  deplore  the  misfortune  of 
the  aged  and  comfortless  parents — still  he  claims  his  acquittal  of 
being  the  willing  instrument  of  death  and  misery. 

He  calls  upon  you  to  restore  him  with  untarnished  reputation  to 
the  embraces  of  a  wbdowed  parent.  He  calls  upon  you  to  wipe 
away  the  tears  of  an  affectionate  and  afflicted  sister  ;  and  to  give 
him  up  to  that  brother,  who  has  been  to  him  a  companion  in  im¬ 
prisonment,  and  is  now  his  anxious  attendant  during  the  progress 
of  this  trial.  He  boldly  deposits  in  your  safe  keeping  his  innocence, 
his  freedom,  and  his  future  fate. 

EVIDENCE  ON  BEHALF  OF  THE  PRISONER. 

First  Witness  for  the  Prisoner — Flosier  Wilder. 

EXAMINED  BY  JAMES  A.  HAMILTON. 

_  Witness.  I  was  walking  up  Broadway  on  the  eastern  side  of  the 
street ;  and  after  I  had  got  nearly  to  the  corner  of  Maiden-lane,  in 
casting  my  eye  across  the  street,  I  saw  two  persons  on  the  pave¬ 
ment.  The  first  thing  that  struck  my  view  was,  the  one  over,  or  on 
the  top  of  the  other  ;  Mr.  Stoughton  was  lying  on  his  back.  I  did 
not  then  know  either  party.  Mr.  Goodwin  was  in  the  act  of  striking 
him  when  I  first  saw  them,  and  repeated  his  blows  two  or  three 
times  with  his  hands,  whilst  Mr.  Stoughton  was  on  his  back,  striking 
with  both  hands,  first  one  and  then  the  other.  I  could  not  distin¬ 
guish  whether  the  hands  were  open  or  shut.  On  observing  this, 
I  immediately  ran  between  them:  my  intention  was  to  part  them. 
It  was  the  natural  impulse  of  my  mind  on  seeing  an  affray,  to  en¬ 
deavour  to  make  peace.  I  approached  very  near  them,  say  within 
a  yard  or  two,  or  perhaps  half  the  breadth  of  the  street:  when 
some  gentlemen  who  had  got  there  sooner,  perhaps  two  or  three, 
were  nearer  than  me.  I  did  not  know  these  gentlemen  at  the  time. 
I  then  observed  one  gentleman  take  hold  of  Mr.  Goodwin,  who  was 
then  in  an  inclining  posture  over  Mr.  Stoughton,  whether  on  his 
feet  or  on  his  knees  I  could  not  see.  Some  gentleman  then  took 
hold  of  him  and  said,  you  seem  to  be  a  gentleman,  I  am  surprised 
1  to  see  you  in  that  situation  ;  or,  perhaps,  not  quite  so  many  words. 


84 


He  took  hold  of  Mr.  Goodwin,  and  lie  rose  from  over  Mr.  Stough* 
ton,  and  got  upon  his  feet  and  stepped  back.  At  the  same  instant, 
either  this  gentleman  or  another,  took  hold  of  Mr.  Stoughton  and 
lifted  him  up,  by  means  of  his  own  strength  added  to  that  of  the 
person  who  helped  him.  He  rose  on  his  feet  and  stood  against  a 
person,  leaning  on  his  shoulder  a  moment  or  two  ;  he  then  fell 
back,  and  I  perceived  an  instantaneous  change  in  his  countenance, 
«nd  a  cast  in  his  eye.  Somebody  said,  a  doctor  should  be  sent  for, 
and  that  he  should  be  bled  ;  1  think  it  was  Mr.  Clark,  or  the  same 
gentleman  that  raised  him  up  ;  it  might  have  been  another.  I  had  my 
eye  constantly  upon  him  whilst  this  was  passing.  In  a  very  short 
time  he  settled  down  like  one  crippled,  about  half  way  down  to  the 
pavement,  from  the  shoulder  of  the  person  that  he  had  leaned  on. 
He  was  then  taken  up  and  carried  to  an  adjacent  store.  After  Mr. 
Goodwin  was  taken  off  him,  or  rose  from  over  him,  three  or  four, 
or  half  a  dozen  people,  had  come  from  every  direction.  Mr.  Good¬ 
win  stood  and  looked  for  his  hat.  When  he  was  taken  off,  he 
had  nothing  on  his  head. 

Hoffman.  Did  you  see  the  weapon,  or  the  cane,  on  the  ground  ? 

A.  I  saw  it  afterwards,  when  Mr.  Goodwin  was  looking  for  his 
hat.  I  recollect  seeing  the  weapon  somewhere,  but  whether  in  the 
hands  of  any  person,  or  before  it  was  picked  up  from  the  pave¬ 
ment,  I  cannot  determine.  From  the  time  I  saw  him  till  the  affray 
Was  over,  I  had  a  full  and  distinct  view,  and  there  was  nothing  to 
intercept  my  sight.  Whether  the  blows  were  with  the  open  or 
closed  hands  I  cannot  say.  They  seemed  to  be  always  at  the  head. 
They  were  repeated  quick.  If  I  can  believe  my  own  senses,  1  think 
I  should  have  seen  the  weapon,  or  any  thing  he  could  have  in  his 
hands,  from  the  time  I  lirstsaw  him. 

Cross-examined  by  Wells. 

Q.  You  say  the  first  you  saw  of  these  parties,  was  one  over  the 
fcther.  Was  the  prisoner  on  the  ground  ? 

A.  I  cannot  say  whether  he  was  on  his  feet,  or  leaning  on  his 
knees.  The  first  motion  1  perceived  was  the  giving  of  those  blows. 

Q..  Might  not  he  have  that  dagger  in  his  hand,  and  you  not  see 
it,  supposing  he  held  it  in  that  manner  ?  (showing.) 

A.  It  appears  to  me  next  to  impossible.  1  took  it  to  be  an  ordi¬ 
nary  affray,  and  thought  it  of  little  consequence. 

Q.  Then  not  considering  it  a  serious  affair,  Mr.  Goodwin  might 
have  had  that  in  his  hand,  or  a  stone,  for  aught  you  knew  ? 

*A.  I  saw  the  motions,  and  could  see  quite  plain  across.  I  was  a 
little  below  Maiden-lane,  when  1  first  saw  them. 

Q.  AVas  there  any  blow  after  the  prisoner  was  raised  from  Mr. 
Stoughton  ? 

A.  No,  sir.  They  were  not  in  such  a  position  that  they'  could 
come  together.  They  were  not  near  each  other. 

Q.  Did  you  see  Mr.  Stoughton  when  he  fell  ? 

A.  No.  The  first  thing  l  saw  was  when  he  was  lying  on  his 
back. 


35 


The  Mayor .  1  wish  the  counsel  would  interrogate  the  witness  so 
as  to  identity  the  part  of  the  street  where  this  happened. 

Witness .  I  should  say  that  probably  Mr.  Stoughton’s  body  lay 
from  10  to  12  feet  from  the  corner  of  the  curbstone  ;  his  feet  were 
next  to  the  curbstone.  He  lay  obliquely,  or  diagonally,  his  feet 
pointing  to  the  southwest  corner,  or  angle  of  the  curbstone. 

Q.  Do  you  know  who  those  persons  were  that  came  up  to  them  ? 

/I.  I  did  not  know  a  single  person  on  the  ground.  I  saw  Mr. 
Wier  a  few  steps  from  me.  I  think  he  was  ahead  of  me.  They 
were  all  strangers  to  me  that  came  first  on  the  ground. 

The  Mayor.  You  say  there  were  one  or  two  persons  before  you — - 
did  Mr.  VVier  cross  over  before  you  ? 

A.  I  think  there  was  not  much  difierence.  He  may  have  been  a 
little  before  me. 

Second  witness  for  the  Prisoner — Col.  James  Warner ,  Police  Justice. 

Witness.  At  the  request  of  the  mayor  and  general  Bogardus,  I 
went  over  to  Elizabethtown  in  pursuit  of  Mr.  Goodwin,  on  the  eve¬ 
ning  of  the  21st  of  December  last.  I  took  with  me  two  police  offi¬ 
cers  ;  Mr.  Hays,  the  high  constable,  and  Mr.  Raymond.  We 
crossed  the  river  in  a  rowboat,  got  a  carriage  at  Jersey,  and  drove 
rapidly  to  the  Point,  to  ascertain  if  he  was  there,  and  inquired  if 
such  a  gentleman  had  crossed.  They  told  me  that  gentlemen  of  the 
description  had  crossed.  1  next  inquired  whether  any  measures 
had  been  taken  to  obtain  a  carriage.  They  told  me  not,  and  that 
all  the  gentlemen  had  gone  up  to  the  town.  I  inquired  of  the  per¬ 
son  who  had  gone  down  with  him,  (the  proprietor  I  think  he  was) 
and  he  informed  me  the  passengers  were  all  at  the  same  house. 
Finding  they  were  all  gone  to  the  same  public  house,  (Rivers’s) 
we  went  directly  there.  When  we  came  to  the  stoop,  as  Mr.  Ray¬ 
mond  knew  him,  I  desired  him  to  look  into  the  window,  which 
he  did,  and  said  he  was  not  there.  I  then  said  I  must  see  the 
landlord,  to  ask  if  all  the  passengers  were  there.  Mr.  Goodwin 
was  in  the  bar-room  smoking  a  segar,  or  had  one  in  his  hand. 
Mr.  Raymond  addressed  him ;  for  he  was  to  speak  to  him,  that  I 
might  by  that  means  know  which  of  the  gentlemen  was  he.  Mr. 
Raymond  asked  him  how  he  did,  and  told  him  he  was  sorry  for 
what  had  happened.  Mr.  Goodwin  answered,  how  do  you  do, 
Mr.  Raymond  ?  how  is  Mr.  Stoughton  ?  I  then  told  him  I  was 
sorry  to  inform  him  he  was  dead,  and  that  I  was  come  from 
New-York,  to  take  him  to  answer  for  the  act  of  killing  him, 
©r  some  such  words.  He  expressed  his  sorrow,  and  observed 
that  he  was  ready  to  go  ;  that  he  never  would  fly  from  the 
laws  of  his  country  ;  that  he  had  not  come  there  to  avoid  the 
charge  ;  that  he  had  no  idea  of  such  a  thing  taking  place,  and 
declared  his  willingness  to  go  with  me.  He  came  out  with  me, 
and  then  expressed  a  desire  to  speak  to  a  gentleman  who  was 
in  the  room  1  had  first  looked  into.  1  told  him  that  he  might. 
He  then  opened  the  door,  and  called  a  gentleman  by  the  name 
of  Judge  Butler.  The  gentleman  came  out  into  the  entry.  He 


86 


observed  to  him  that  he  was  arrested,  or  taken,  and  had  to  go 
back  to  New-York.  The  gentleman  then  addressed  himself  to 
me,  and  inquired  by  what  authority  I  took  him.  I  answered, 
by  no  written  authority.  He  observed  that  the  authority  of  the 
mayor  did  not  reach  there.  I  told  him  1  knew  that :  that  it  was 
for  Mr.  Goodwin  to  say  whether  he  would  go  or  not.  He  re¬ 
plied  that  he  was  ready  to  go,  and  would  submit.  Mr.  Butler 
approved  that  course,  and  said  it  was  very  proper.  The  car¬ 
riage  was  then  standing  at  the  door.  He  jumped  in,  and  we 
drove  on  to  New-York.  The  prisoner  expressed  his  wish  to 
be  taken  to  the  mayor,  immediately  on  his  arrival ;  and  1  told 
him  if  the  mayor  was  up,  he  certainly  should. 

Cross-examined,  by  Hoffman. 

Q  Did  he  say,  you  have  no  right  to  take  me,  but  I  will  go  ? 

A.  After  Mr.  Butler  spoke  about  the  authority  of  the  mayor,  he 
mentioned  that  he  would  not  object. 

Q.  You  admitted  you  had  no  right  to  take  him  ? 

A.  I  said  I  had  no  written  authority.  But  I  was  myself  deter¬ 
mined  to  have  made  a  hue-and-cry,  though  I  did  not  tell  him  that. 
He  was  very  courteous  and  complying,  and  there  was  no  occasion. 
He  was  taken  to  the  mayor  that  night,  and  committed  to  the  Bride¬ 
well. 

Q.  Do  you  know  who  Mr.  Butler  is  ? 

A.  I  have  heard  he  was  one  of  the  members  of  congress  for 
Louisiana — he  was  called  Judge  Butler. 

Third  Witness  for  the  Prisoner — Jacob  Hays. 

Witness.  I  can  say  nothing  but  what  Mr.  Warner  has  said.  Some¬ 
body  asked  what  authority  we  had,  immediately  on  our  going  in  ; 
and  the  prisoner  at  once  said  he  would  go. 

Emmet.  I  find  myself  under  the  necessity  of  stating,  that  Mr. 
Hoffman,  who  has  charge  of  the  testimony  of  the  prisoner,  is  ex¬ 
tremely  indisposed.  I  shall  request,  as  a  favour,  that  the  court 
adjourn.  It  is  now  nearly  five  o’clock,  and  perhaps  it  would  not 
be,  at  any  rate,  a  very  improper  time  to  adjourn. 

The  Mayor .  I  feel  very  much  for  this  jury.  It  is  hard  to  keep 
so  many  citizens  from  their  families.  The}'  are  entitled  to  be  con¬ 
sulted  on  this  point.  His  honour  further  stated  that  he  had  received 
a  note  for  one  of  the  jurors  :  that  it  only  regarded  his  family 
affairs,  and  he  presumed  it  could  not  be  any  prejudice  to  either  of 
the  parties.  The  counsel  on  both  sides  consented,  and  it  was  given 
to  the  juror. 

And  then  one  of  the  jurors  asked  on  behalf  of  himself  and  his 
fellow-jurors,  whether  they  might  not  be  allowed  to  communicate 
with  their  clerks.  Which  the  mayor  said  could  not  be  permitted, 
unless  it  were  in  open  court. 

The  oppressive  heat  of  the  court  from  the  continual  crowd  which 
had  so  long  filled  it,  had  exhausted  all  concerned,  and  the  jurors 
asked  whether  they  might  not,  during  the  recess  of  the  court,  be 


87 


indulged  to  walk  in  the  Park,  adjoining  the  Hall,  to  take  the  fresh 
air  ;  which,  after  some  deliberation,  the  court  seemed  disposed  to 
comply  with.  But  the  sheriff  observing  that  he  could  give  the 
jurors  the  same  recreation,  and  a  very  agreeable  walk  on  the  top 
of  the  building,  that  was  thought  more  suitable.  The  mayor  also 
pointed  out  the  governor’s  gallery,  where  they  might  have  as  much 
air  and  exercise  as  their  health  required,  and  be  as  sequestered  as 
in  the  jury  room. 

Then  Mr.  Crawbuck,  one  of  the  jurors,  asked  for  permission  to 
communicate  with  one  of  his  sons,  or  with  a  clerk — to  which  the 
mayor  answered,  that  it  must  only  be  in  court,  and  that  the  court 
would  now  wait,  if  it  was  necessary,  to  give  him  time  to  come,  or 
that  he  might  come  to-morrow  morning.  And  the  court  then  ad¬ 
journed  till  the  following  morning,  at  the  usual  hour  of  eleve&i 
o’clock. 

THIRD  DAY. — THURSDAY,  MARCH  16th. 

At  11  o’clock  A.  M.  the  Court  met. 

PRESENT  AS  BEFORE. 

Tile  court  being  met,  the  jury  was  called  over,  and  each  answered 
o  his  name.  The  mayor  told  the  petit  jurors  not  empanelled  in  this 
;ause,  that  it  appeared  quite  unlikely  that  this  trial  should  be 
inished  before  to-morrow.  And  Saturday  being  appropriated  to  the 
naking  up  and  pronouncing  the  sentences  of  the  convicts,  and  n« 
ury  day,  they  were  therefore  discharged  for  the  term. 

Fo  urteenth  witness  for  the  prosecution — Churchill  C.  Cambreleng. 

EXAMINED  BY  GRIFFIN. 

<$.  Were  you  in  company  with  Mr.  Goodwin  on  the  21st  of  De¬ 
ember  last  ? 

A.  I  was,  sir. 

Q.  At  what  hour  did  you  and  he  come  together  ? 

A.  About  three  o’clock. 

Q.  Where  did  you  first  come  together  ? 

A.  At  the  City  Hotel. 

Q.  Where  did  you  then  go? 

A.  We  walked  up  Broadway  as  far  as  the  Church,  and  then  re- 
irned. 

Q.  Upon  your  return  did  you  meet  Mr.  Stoughton  ? 

:  A.  We  did. 

Q.  Where  ? 

A.  Nearly  at  King  and  Mead’s  store,  on  the  northwest  side  of 
bo  ad  way,  next  Counlandt-street. 

Q.  How  long  before  you  passed  him  did  you  see  him  coming  ? 

A.  About  thirty  or  forty  seconds. 

Q.  Did  you  make  any  observation  to  Mr.  Goodwin  ? 

A.  1  think  I  said,  there  is  your  friend  coming,  or  something  of 
I  tit  kind. 


88 


Q.  Did  Mr.  Goodwin  make  any  reply  ? 

A.  He  said  nothing  at  all.  We  then  walked  on  to  the  northwest 
corner  of  Courtlandt-street  and  Broadway,  opposite  to  King  and 
Mead's  store.  When  we  approached  w  ithin  about  six  paces  ot  Mr. 
Stoughton,  Mr.  Goodwin  and  he  being  in  front  of  each  other,  Jlr. 
Goodwin  pointed  at  him  with  his  cane,  and  said,  there  is  a  coward 
and  a  scoundrel,  or  such  words,  I  cannot  exactly  say,  pointing 
his  cane  as  if  indicating  that  he  was  the  man.  This  was  on  the  side¬ 
walk,  on  the  southwest  corner. 

Q.  What  occurred  when  you  passed  Mr.  Stoughton  .  g 

A.  Mr.  Stoughton  passed  on  without  saying  any  thing  ;  they  look¬ 
ed  at  each  other;  Mr.  Stoughton  passed  on  about  two  paces  and 
then  turned  quickly  round.— t  think  I  should  get  through  more  re¬ 
gularly,  if  the  gentlemen  would  allow  me  to  tell  the  story  as  it  hap- 

^  Griffin.  I  wish  to  direct  your  attention  to  this  :  I  want  to  know 
whether  Mr.  Goodwin  repeated  these  words  as  he  passed  him  l  * 
A.  He  merely  pointed  and  repeated  the  words  as  lie  passed.  ^ 

Q.  Be  good  enough,  sir,  to  mention  what  occurred  afterwards. 

A.  After  Mr.  Stoughton  passed  on  a  few  paces,  he  tu rifled  partly 
round.  Mr.  Goodwin" turned  facing  him.  Apprehending  an  affray,  ij 
pulled  Mr.  Goodwin  by  the  arm,  and  advised  him  to  go  on,  whiclj 
he  did  readily.  We  crossed  the  head  of  Courtlandt-street,  from  thr  j 
northwest  to  the  southwest  corner,  and  l  supposed  that  Mr.  Stough  , 
ton  had  continued  his  walk.  When  we  had  reached  the  southwes  j 
corner,  Mr.  Stoughton,  who  had  followed,  came  up  and  accoste. 
Mr.  Goodwin.  Mr.  Goodwin  turned  quickly  and  answered, 
cannot  precisely  repeat  his  words,  1  think  they  were  these  :  “  Vifil 
you  repeat  what  you  said?”  The  answer  was,  l  will,  sir:  that  a 
least  was  the  import.  The  question  and  answer  were  very  short  an- 
quick.  It  was  next  to  impossible  for  a  bystander  to  understan 
them.  Mr.  Stoughton  strurk  him,  and  after  that  blow,  Mr.  Goodwt 
struck  Mr.  Stoughton  with  his  cane,  holding  the  but  end  ot  it  m  hi 
hand  :  the  blow  followed  immediately.  Mr.  Stoughton  struck  Mi 
Goodwin  near  the  left  shoulder,  pretty  high  up  on  the  breast ; 
could  not  tell  exactly,  Mr.  Goodwin  being  at  that  time  turned  rouni 
The  blow  of  Mr.  Stoughton  was  with  his  list.  I  saw  the  motion  c 
the.  hand,  but  could  not  see  distinctly,  as  Mr.  Goodwin’s  back  w? 
to  me,  and  he  was  between  me  and  Mr.  Stoughton.  (The  cane  w< 
now  shown  to  the  witness.)  This  is,  1  presume,  the  same.  I 
striking  the  blow  with  this  cane,  the  dagger  Hew  partly  out  of  ft) 
sheath T  The  attention  of  both  parties  seemed  directed  toward  th 
part  of  the  blade  which  was  exposed.  Mr.  Goodwin,  howeve 
seized  the  dagger  by  the  handle,  and  put  the  blade  in  Ins  right  ban 
The  first  stroke  was  with  the  but  of  the  cane.  In  doms;  that  tl 
sheath  was  off  it,  about  so  far,  (showing  a  few  inches)  Mr.  (too., 
win  then  seized  the  blade,  and  in  that  manner  followed  up  his  bloy 
The  .Mayor.  I  should  like  to  know  precisely  where  the  parti- 
were  at  this  stage  of  the  transaction  ? 


89 


A.  At  the  moment  the  blow  was  given  with  the  carte,  both  pas¬ 
ties  were  on  the  sidewalk.  It  appeared  to  me  that  Mr.  Stoughton, 
on  retreating,  placed  one  foot  upon  the  pavement  of  the  cartway. 
The  battle  between  them  was  quick  and  sudden.  1  should  suppose 
three  or  four  tdows  were  given  on  each  side,  and  I  think  they  re¬ 
treated  (one  retreating  and  the  other  advancing)  about  eight  paces 
across,!  but  not  quite  as  far  as  the  middle  of  Courtlandt-street,  and 
rather  into  Broadway.  Mr.  Goodwin  held  the  sword  close  by  the 
handle,  which  1  think  took  from  it  part  of  the  force  and  impulse  it 
would  have  had  if  held  more  at  length. 

Q.  When  you  say  the  one  was  retreating  and  the  other  advan¬ 
cing,  you  mean  that  Mr.  Stoughton  was  retreating  and  Mr.  Good¬ 
win  advancing  1 

A.  I  do. 

Q.  Where  were  you  situated  at  the  time  of  that  retreat  ? 

A.  I  waS  on  the  sidewalk. 

Q.  Was  the  prisoner’s  back  or  face  towards  you  ? 

A.  I  could  see  the  right  arm  of  Mr.  Goodwin,  and  the  left  ofMr. 
5toughton.  I  could  see  the  blows  that  were  given,  being  high,  in 
the  way  they  were  fighting.  Mr.  Weed  was  then  standing  not  far 
From  us,  on  his  own  stoop. 

Q.  Who  was  the  first  person  that  came  to  interfere  between  the 
combatants  ? 

A.  I  think  Mr.  Clark  and  myself  arrived  about  the  same  time, 
de  came  from  the  northeast  side,  and  I  of  course  from  the  south- 
vest.  Mr.  Stoughton  had  fallen  before  either  of  us  came  up.  I 
:annot  tell  whether  he  fell  from  the  blow,  or  tripped  in  re- 
reatiug,  or  what  produced  his  fall  ;  for  the  further  they  went 
rom  me,  the  less  I  could  see.  Another  reason  was,  that  each 
tarty  had  on  one  of  those  fashionable  surtout  coats,  with  large 
:apes,  so  that  it  was  difficult  for  me  to  see  what  was  passing 
between  them  at  the  moment. 

Q.  Please  to  go  on  sir,  and  mention  what  else  took  place. 

A.  Mr.  Clark  called  out  from  the  other  corner,  and  we  went  up 
o  them.  1  was  behind  Mr.  Goodwin,  and  took  hold  of  him,  and 
eparated  them. 

Q.  What  was  their  precise  situation  at  that  time  when  you  came 
o  them  ? 

A.  I  think  Mr.  Stoughton  Was  lying  on  the  cartway.  Mr.  Good- 
vin  had  fallen  nearly  down  upon  him,  but  not  so  far  as  to  lose  his 
alance,but  as  near  as  he  could  well  be,  without  being  on  the  body 
jf  the  other.  It  is  difficult  to  describe  their  situation  with  exactness. 

Q.  When  Mr.  Clark  came  up  to  separate  them  ? 

A.  There  was  another  gentleman,  whom  I  have  supposed  was 
Ir.  Clark,  but  who  1  now  believe  was  Mr.  M‘Williams. 

Q.  What  was  the  first  act  of  Mr.  Clark; — who  first  took  hold  of 
ae  parties  ? 

A.  The  back  of  Mr.  Goodwin  was  to  me,  and  prevented  my 
seing  him. 

Q.  Be  so  good  then  to  state,  sir,  what  next  occurred, 

12 


90 


A.  The  parties  were  separated,  Mr.  Stoughton  was  raised;  ll 
think  he  got  up  with  very  little  assistance  from  Mr.  M'Williams,  ' 
They  stood  looking  at  each  other  like  two  persons  that  had  been 
engaged,  and  were  ready  to  begin  the  battle  again,  if  we  would  let 
them.  While  they  were  so  standing,  three  or  four  other  persons 
came  up.  in  about  half  a  minute  Mr.  Stoughton  rested  his  arm  oi 
hand  upon  the  shoulder  of  Mr.  M‘ Williams,  1  thought  till  lately  it 
was  Mr.  Clark  ;  and  gradually  reclined  his  head  upon  his  hand, 
jesting  it  upon  Mr.  M*  Williams’  shoulder:  and,  as  1  thought  at  the  I 
time,  fainted  away. 

Q.  Was  there  any  explanation  made  before  Mr.  Phelps  at  the  i 
time  ? 

A.  Mr.  Phelps  came  up  just  before  he  fainted,  and  looked  him  in  I 
the  face,  and  said  :  “  this  is  a  dead  man.” 

Q.  Did  Mr.  Goodwin  leave  the  ground  then,  and  what  passed  ? 

A.  Mr.  Stoughton,  when  he  swooned,  was  supported  by  those  i 
that  were  near  him,  so  that  he  did  not  fall  at  all :  and  he  was  taker 
into  a  neighbouring  store  and  the  door  locked.  This  might  probabl) 
have  occupied  a  minute.  The  door  was  locked  almost  immediately 
to  prevent  the  crowd  from  rushing  in  and  taking  the  goods  in  the 
drygoods  store.  Mr.  Goodwin  observed  to  me,  that  he  had  lost  hi: 
hat,  but  had  got  Mr.  Stoughton’s  ;  I  told  him  he  had  better  keej 
that  till  he  had  found  his  own  :  that  probably  the  person  who  hai 
that,  had  exchanged. 

Q.  Where  did  he  go  then  ? 

A.  We  walked  together  down  Broadway,  leisure!}',  as  we  hae 
been  walking  before. 

Wells.  What  was  your  conversation  then  ? 

A.  Mr.  Goodwin  asked  me  if  1  thought  he  had  better  leave  thi 
city.  1  told  him  no,  it  was  unnecessary  ;  that  Mr.  Stoughton  hai 
fainted,  and  would  undoubtedly  recover.  Mr.  Goodwin  then  re 
minded  me  of  the  expression  of  Mr.  Phelps,  “  That  is  a  dead  man.’  . 
I  then  told  him  that,  perhaps,  he  had  better  quit  the  city  till  he  hai 
ascertained  whether  be  recovered  or  not. 

Q.  Where  did  you  part  with  him  ? 

A.  1  parted  with  him  near  the  City-Hotel,  and  returned  througl 
the  crow'd. 

O.  Did  he  lodge  at  the  City-Hotel  ? 

A.  He  did. 

Q.  Did  Mr.  Goodwin  go  in  then  ? 

A.  Mot  while  l  was  there.  (Witness  being  asked,  stated  tin 
manner  of  Mr.  Stoughton’s  fall  as  before.) 

The  Mayor.  I  understand  you  saw  Mr.  Goodwin  using  the  dagger 
by  striking  with  the  but  end,  and  holding  the  blade,  when  Mr 
Stoughton  was  retreating  :  and  that  you  saw  him  have  it  when  In 
fell,  or  immediately  before.  When  did  you  see  that  dagger  again  ?  I 

A.  I  have  an  impression  that  I  saw  it  a  minute  after  the  affray  t 
was  over  ;  but  I  did  not  see  it  in  his  hand  at  the  time  they  stooi  | 
looking  at  each  other  :  and  I  have  the  impression  on  my  mind,  tha 


91 


somebody  picked  it  up  and  gave  it  to  him  when  the  affray  vras  over, 
perhaps  a  minute  after  the  time  he  was  looking  for  his  hat  ? 

Q.  Do  you  mean,  sir,  to  state  that  as  your  positive  testimony  ? 

A.  I  do  not  state  it  as  a  matter  of  fact  of  which  1  am  positive  :  it 
was  a  moment  of  confusion,  and  it  is  a  very  vague  impression  upon 
my  mind. 

The  Mayor.  What  did  you  mean  by  “  when  the  affray  was  over,1' 
was  it  after  he  fainted,  or  after  he  was  carried  into  the  store  ? 

A.  After  he  was  carried  into  the  store.  But  it  is  a  very  vague 
impression. 

Griffin.  When  was  Mr.  Goodwin  looking  for  his  hat — at  what  part 
of  the  transaction,  or  how  long  ? 

A.  I  cannot  say  how  long,  for  the  moment  Mr.  Stoughton  fell, 
my  attention  was  more  towards  his  person. 

Q,  If  you  saw  the  dagger  then  at  all,  it  must  have  been  after  he 
was  carried  on  the  stoop  ? 

A.  It  must  have  been  so,  if  I  saw  it  at  all.  The  period  of  the 
transaction  and  the  time  are  equally  uncertain. 

Q.  Your  attention  was  directed  to  Mr.  Stoughton  w'hen  in  thq 
act  of  fainting  ? 

A.  Yes,  sir. 

Q.  And  while  he  was  removing  to  the  stoop  ? 

A.  Yes,  sir. 

Q.  During  that  time  you  have  no  impression  that  you  saw  any 
body  handing  the  dagger  to  Mr.  Goodwin  ? 

A.  It  may  have  happened  w’hile  they  were  taking  him  to  the 
stoop  ;  but  it  could  not  well  have  been  then,  as  my  attention  was 
directed  to  Mr.  Stoughton. 

Cross-examined  by  Hoffman. 

Q.  At  the  moment  the  deceased  fainted,  did  you  see  both  the 
hands  of  the  prisoner  ? 

A.  Yes,  sir.  I  was  standing  close  by  his  side.  1  saw  both  his 
hands,  and  no  dagger. 

The  Mayor.  I  wish  to  understand  precisely  what  you  intend  by 
“  the  moment  after  he  fainted  ?” 

A.  The  moment  when  he  was  supported  by  the  persons  who 
stood  near  him,  and  was  carried  towards  the  store.  The  moment 
immediately  after,  is  more  properly  the  moment  when  he  was  so 
supported.  At  that  moment  when  the  parties  were  both  standing 
up,  looking  at  each  other  nearly  half  a  minute. 

Q.  When  you  were  assisting  to  separate  them,  had  Mr.  Goodwin 
then  the  dagger  in  his  hand  ? 

Q.  I  was  behind  and  might  not  have  seen  :  but  I  suppose  if  he 
bad  had  it  in  his  hand  I  might  have  seen  it,  as  his  right  hand  was 
all  the  time  exposed  to  my  view.  1  was  just  behind  Mr.  Goodwin 
at  that  time — whether  I  took  hold  of  him  or  not,  1  cannot  say.  I 
think  I  took  hold  of  him  by  the  collar  :  to  say  1  saw  his  right  hand, 
might  be  too  particular  :  but  that  I  saw  his  right  arm,  I  can  say  with 
certainty, 


92 


Q.  Was  Mr.  Goodwin’s  right  hand  or  right  arm  in  such  a  way, 
at  any  time,  that  you  could  not  have  a  distinct  view  of  it  ? 

A.  No  :  for  the  right  side  of  his  body,  during  the  whole  contest, 
was  next  to  me,  and  1  could,  during  the  contest,  see  the  right  arm  ; 
but  after  I  came  directly  behind  him,  I  could  not. 

Q.  At  the  moment  of  Mr.  Stoughton’s  fall,  could  you  see  the 
prisoner’s  right  hand  ? 

A.  1  think  I  could,  but  not  after  that,  when  I  came  immediately 
behind  him. 

Q.  At  this  very  moment  of  the  fall,  might  you  see  his  right 
hand  ? 

A,  I  might,  but  I  do  not  positively  undertake  to  say  that  I  did 
see  it. 

(Here  the  mayor  deliberately  read  over  to  Mr.  Cambreleng  his 
testimony  as  he  had  minuted  it  down,  and  the  witness  said  that  it 
was  all  correct.) 

Q.  Did  you  hear  any  dagger  fall  on  the  pavement,  at  the  time 
of  Mr.  Stoughton’s  rising  ? 

A.  No,  sir. 

Q.  Did  you  during  any  part  of  the  whole  of  this  conflict  see  Mr. 
Goodwin  give  a  blow  with  the  but  end  of  the  instrument? 

A.  I  never  did. 

Q.  Do  you  think  he  could  have  made  the  thrust  and  you  not  see  it  ? 

A.  1  think  not.  It  would  be  very  improbable. 

By  a  Juror.  At  what  part  of  Mr.  Stoughton's  person  did  the 
blows  appear  to  be  directed  ? 

A,  I  never  saw  any  blows  made  with  the  dagger,  except  with  the 
handle,  and  at  the  head.  He  sepmed  to  be  very  cautious  of  using 
the  blade,  and  appeared  to  me  to  have  received  one  or  two 
blows  during  the  time  he  was  shifting  the  dagger  in  his  right 
hand  ;  he  was  then  entirely  exposed  to  his  antagonist. 

The  Mayor.  Do  you  state  it  as  a  matter  of  fact  or  belief  that  he  re¬ 
ceived  blows  when  he  was  changing  the  instrument  ?  or  is  it  an  in¬ 
ference  of  your  own  ? 

A.  It  is  an  inference  I  drew  from  the  situation  of  the  parties. 

Hoffman.  According  to  the  best  of  your  recollection,  did  he  not 
receive  one  or  two  blows  while  he  was  changing  the  instrument  ? 

A.  I  did  not  see  them,  but  I  am  almost  certain  it  was  so  :  which 
I  conclude  from  the  time  he  remained  exposed  by  that  and  by  the 
dropping  of  the  scabbard,  and  changing  the  instrument. 

(The  witness  here  described  and  showed  how  the  dagger  flew 
halfway  out,  and  how  he  took  the  handle  and  let  the  sheath  drop, 
placing  the  dagger  in  his  right  hand.) 

Q.  Was  there  any  intermission  of  the  blows  ? 

A.  No.  The  battle  seemed  to  me  to  be  very  nearly  equal  ; 
and  I  thought  from  the  time  lost  in  changing  the  instrument, 
that  Mr.  Stoughton  had  the  advantage,  but  the  moment  after,  Mr. 
Goodwin  had  it.. 


93 


Q.  Do  you  mean  to  be  understood,  by  Mr.  Stoughton’s  retreating, 
that  he  did  not  seem  to  wish  to  continue  the  fight  ? 

A.  I  saw  no  such  disposition  on  Mr.  Stoughton’s  part.  The 
whole  of  the  controversy  did  not  last  16  seconds.  It  was  so  quick 
that  no  one  interfered. 

Q.  Did  you  then  consider  the  retreating  of  Mr.  Stoughton  to  be 
for  the  avoiding  of  the  fight  ? 

A.  No,  sir.  I  thought  both  parties  seemed  disposed  to  fight, 
and  I  believe  the  number  of  blows  were  about  equal  on  both  sides. 

Q.  Did  they  appear  to  be  of  equal,  or  nearly  equal  strength  ? 

A.  Mr.  Goodwin  appeared  to  be  the  most  active  man.  Mr. 
Stoughton  I  supposed  to  be  the  strongest.  He  was  rather  taller 
than  Mr.  Goodwin,  perhaps  two  or  three  inches. 

Q.  While  Mr.  Stoughton  was  retreating,  did  he  not  give  blows 
with  as  much  severity  as  during  any  other  part  of  the  contest  ? 

A.  I  think  he  did,  but  could  not  well  judge  of  their  severity. 

Q.  Did  he  only  defend  himself,  or  did  he  strike  ? 

A.  He  struck. 

Q.  Had  a  great  crowd  assembled  there  before  you  and  Mr.  Good¬ 
win  left  the  ground  ? 

A.  A  considerable  crowd,  about  forty  or  fifty  people. 

Q.  Did  he  discover  any  haste  to  be  off? 

A.  None  at  all.  I  believe  he  went  off  with  my  approbation.  The 
crowd  was  gathering  every  instant,  and  there  was  a  natural  excite¬ 
ment  among  them. 

Q.  Did  you  know  any  thing  of  his  stopping  to  buy  a  hat  ? 

A.  1  heard  from  Mr.  Shelton,  that  he  stopped  at  Mr.  Brewster’s. 
I  left  Mr.  Goodwin  in  company  with  Mr.  Shelton,  near  the  City 
Hotel,  when  1  returned  to  the  crowd,  where  I  was  very  much 
surprised  to  hear — (witness  was  stopped  by  an  objection  to  his  testify¬ 
ing  from  hearsay. ) 

Witness.  I  was  going  merely  to  repeat  what  formed  a  part  of  my 
testimony  before  the  inquest  and  the  grand  jury.  It  was  natural 
for  me  to  repeat  it,  not  knowung  it  was  objectionable. 

The  Mayor.  Describe  how  it  passed  after  Mr.  Goodwin  had  be¬ 
gan  to  use  the  instrument. 

A.  1  think,  after  that,  he  had  the  advantage,  but  not  by  the  use 
of  the  instrument,  rather  by  using  both  his  hands. 

Q.  What  was  the  reason  did  you  think  of  his  going  back  ? 

A.  It  appeared  to  me  that  Goodw'in  W’as  the  best  fighter,  and 
knew  more  about  it  than  Mr.  Stoughton. 

Q.  Did  you  consider  the  having  of  this  cane  as  any  advantage  in 
giving  the  blows  ? 

A.  I  think  not.  If  he  had  held  it  nearer  the  end  of  the  blade  it 
might. 

Q.  Which  hand  of  the  prisoner  seemed  to  do  most  execution  ? 

A.  I  thought  I  perceived  a  bruise  upon  the  right  cheek,  which 
must  have  been  given  with  the  left  hand,  and  which  seemed  to  have 
had  the  greatest  effect. 


94 


<5.  From  all  you  saw  of  the  situation  of  the  parties,  and  of  the 
circumstances  connected  with  it — 

Griffin.  Let  the  witness  be  asked  as  minutely  as  possible,  touch¬ 
ing  all  the  relative  situations  ofthe  parties  ;  but  having  told  all  the 
iacts  he  knows,  his  opinions  are  not  to  be  appealed  to  as  evidence. 

Emmet.  J  he  learned  counsel  forgets  that  we  are  now  cross-ex¬ 
amining  the  witness,  and  have  a  right  to  his  belief.  1  contend,  that 
for  the  enlightening  ot  the  jury,  who  could  not  see  the  facts  with 
their  own  eyes,  they  should  know  the  opinion  of  the  witness  who 
did  see  them,  whether  the  accident  could  take  place  otherwise  than 
by  the  fall.  There  will  always  be  circumstances  that  cannot  be 
translated,  or  rightly  rendered  to  the  juror  by  words,  and  the  jury 
being  to  judge  of  the  circumstances,  ought  to  be  acquainted  with 
the  conviction  of  the  witness  from  all  he  saw  and  observed,  and 
w  ith  the  character  of  the  transaction  from  the  impressions  it  made 
upon  him  :  for  instance,  whether  it  was  accidental  or  otherwise. 
All  this  is  necessary  to  lead  the  mind  of  the  jury  to  the  truth,  and, 
perhaps,  to  prepare  them  forjudging  of  other  truths  that  may  fol¬ 
low.  And,  indeed,  unless  you  get  rid  of  the  cardinal  rule,  that  on 
cross-examination  you  are  entitled  to  a  witness’s  belief,  you  cannot 
shut  out  this  testimony. 

The  Mayor.  The  court  think  the  question  is  not  proper.  It  is 
the  province  of  the  jury  to  say  whether  the  fact  took  place  by  acci¬ 
dent  or  otherwise,  and  it  would  be  substituting  the  witness  in  the 
place  of  the  juror.  It  would  be  as  competent  to  call  any  other 
witness  and  ask  his  inference.  It  is  here  said  that  there  may  be 
certain  circumstances  which  might  influence  his  conclusions,  but 
that  is  a  reason  for  not  asking  his  opinion.  Many  circumstances 
may  transpire  to  influence  a  witness  to  draw  a  conclusion  that  he 
ought  not  to  draw,  and  therefore  he  should  be  confined  to  stating 
the  facts,  and  not  put  himself  in  a  situation  to  draw  one  conclusion, 
while  the  jury,  from  the  same  facts,  might  draw  a  different  one. 
The  argument  of  its  being  a  cross-examination,  cannot  extend  so 
far  as  to  the  asking  of  every  question  ;  on  all  cases  and  circum¬ 
stances,  the  discretion  of  the  court  must  govern,  and  counsel  is  not 
to  examine  how,  and  how  long  he  pleases.  The  court,  in  its  dis¬ 
cretion,  may  interpose.  I  think  the  rule  goes  thus  far,  that  you 
may  test  the  witness  by  questions  that  are  not  even  relevant ;  but 
suppose  a  witness  gives  an  opinion,  how  shall  you  contradict  him  ? 
You  cannot  bring  other  witnesses  to  contradict  his  opinions  ;  there¬ 
fore,  though  a  counsel  may  travel  out  of  the  case  to  test  his  credit, 
it  does  not  follow  that  you  can  ask  his  opinion.  We  should  have 
made  the  same  decision  touching  the  opinion  of  the  doctors,  if  the 
objection  had  been  made  by  the  opposite  counsel. 

Q.  Do  you  know  whether  that  was  the  cane  Mr.  Goodwin  used 
to  walk  with  ? 

A.  1  do  not  know,  I  never  sawr  it  before. 

Q.  Do  you  know  whether  Mr,  Goodwin  has  ever  been  a  military 
man  ? 


95 


A.  I  never  saw  him  until  this  last  summer.  But  I  have  heard, 
hat  he  had  been  a  military  man. 

Q.  Did  you  see  any  marks  of  blows  upon  Mr.  Goodwin  ? 

A.  None  that  1  recollect. 

Juror.  Was  the  fall  a  severe  one  ? 

A.  It  appeared  to  me  that  Mr.  Stoughton  fell  upon  his  hip;  his 
egs  appeared  to  fly  up,  and  his  head  upon  the  pavements. 

Q.  YVas  the  blade  of  that  instrument  concealed  ? 

A,  It  was  apparent  all  the  time. 

Q.  Might  not  that  have  been  the  cause  of  his  retreat? 

A.  I  think  it  probable  that  it  was. 

Emmet.  Is  not  this  asking  opinions  of  witnesses  ? 

The  Mayor.  \  ou  have  all  along,  upon  that  point,  been  asking 
(pinions.  The  whole  cross-examination  has  been  to  that  effect. 
Juror.  What  was  the  cause  of  Mr.  Stoughton’s  falling  ? 

A.  I  cannot  say. 

Juror.  We  w’ish  to  know,  whether  at  the  same  instant  that  Mr, 
itoughton  fell,  Mr.  Goodwin  fell  also  ? 

A.  It  was  at  the  same  instant :  but  Mr.  Goodwin  was  not  down  so 
s  to  lose  his  balance. 

Q.  Were  there  blows  just  at  the  time  of  the  fall  ? 

A,  There  were. 

The  Mayor.  Was  Mr.  Goodwin  off  his  feet  at  any  time  ? 

A.  He  was  not. 

Hoffman.  Where  did  he  serve  as  a  military  man  ?  was  it  not  with 
en.  Jackson  at  New-Orleans  ? 

Some  debate  arose  upon  the  propriety  of  this  question. 

The  Mayor.  I  do  not  see  that  this  question  is  improper.  If  you 
iter  into  such  inquiries  on  the  one  side,  it  is  open  to  the  other  ; 
ough  I  cannot  see  what  it  has  to  do  with  the  case. 

Juror.  Did  vou  see  Mr.  Goodwin  give  Mr.  Stoughton  any  blows 
'ter  he  fell  ? 

A.  1  did  not  see  any  blows. 

Q.  Did  you  see  him  slap  him  on  the  cheeks,  as  another  witness 
lis  said  ? 

A.  1  did  not  see  it. 

Q.  If  he  had  struck  him  with  the  head  of  the  cane,  would  not  you 
1  ve  seen  it  ? 

A.  I  must  then,  I  think,  have  seen  it,  for  he  could  not  have  drawn 
1;  hand  to  strike  with  the  dagger  without  my  seeing  it.  At  least,  I 
sapose,  I  must  have  seen  it. 

Fifteenth  Witness  for  the  Prosecution — Dr.  Wright  Post. 

EXAMINED  BY  WELLS. 

Witness.  I  was  called  to  see  Mr.  Stoughton,  but  he  expired  the 
nment  I  arrived  :  I  approached  the  counter  on  which  he  lay,  and 
so'  the  wound. 

Did  you  probe  it  ? 

I.  I  did  not  examine  it, 


96 


Q.  Suppose  that  wound  had  been  indicted  with  an  instrument  oi 
this  kind,  (showing  it)  and  passed  through  the  breastbone,  could 
that  have  been  done  by  a  man  of  ordinary  strength  ? 

Emmet.  1  object  to  that,  not  only  as  a  master  of  opinion,  but  as  a 
matter  which  cannot  be  answered,  but  with  reference  had  to  the 
circumstances  and  relative  position  of  the  parties  ;  and,  skilful  as 
Doctor  Post  may  be  in  anatomy,  he  cannot  tell  what  the  musculat 
force  of  a  man  can  effect,  till  he  knows  and  considers  in  what  posi  j 
tion  he  stands,  and  in  what  manner  it  is  to  be  employed. 

Wells.  They  have  led  the  way  to  these  inquiries,  and  set  us  tin 
example  :  when  it  was  for  their  advantage,  the  gentlemen  found  i 
proper  ;  when  it  turns  against  them  they  think  it  improper.  I  onhl 
ask,  whether  there  is  any  thing  to  prevent  that  instrument  Iron 
producing  that  effect  ? 

Emmet.  It  cannot  be  necessary  to  ask  a  doctor  whether  a  dagge 
can  penetrate  into  a  man’s  body.  There  has  been  too  much  expe 
rience  of  that. 

Hoffman.  The  testimony  of  Dr.  Mott  came  out  from  the  exami 
nation  of  Mr.  Van  Wyck.  (Mr.  Hoffman  here  read  from  his  note 
to  confirm  the  assertion.)  After  he  had  given  this  testimony  o.  | 
his  examination  in  chief,  we  only  pursued  the  inquiry. 

The  Mayor.  We  may  call  physicians  to  tell  us,  if  it  become 
material,  what  obstruction  the  weapon  would  meet  with  in  takin 
its  course  through  a  rib,  breastbone,  &c.  ;  that  depends  upon  tech 
nical  knowledge,  and  falls  under  their  province.  If  they  conli 
tell  us  the  force  by  mechanical  calculation,  as  so  many  pound; 
&.c.  it  might  lead  to  the  solution  of  a  problem.  But  we  have  n 
such  measure.  But  when  we  ask  an  anatomist  whether  the  ord 
nary  muscular  force  of  a  man  would  be  capable  of  driving 
given  instrument  through  a  given  part  or  parts  of  the  human  bod* 
it  seems  to  me  a  technical  question.  When  1  spoke  of  the  court 
interposing,  it  was  when  the  counsel  were  placing  the  parties  i 
certain  situations,  and  raising  suppositions  of  what  the  parties  migl 
have  done,  if  placed  so  and  so,  to  answer  which  a  fencing  mash 
would  be  fully  as  competent,  or  indeed  any  other  person.  And 
matters  not  who  began  it,  or  upon  whose  side  it  came  out.  It  hi 
gone  on  by  consent,  neither  party  objecting  ;  and  it  was  impossib 
to  stop  what  was  but  an  answer  to  the  opposite  party. 

Q.  What  impediment  then,  Doctor  Post,  might  an  instrument 
that  kind  meet  with,  passing  between  the  ninth  and  tenth  rib,  ar 
splintering  a  part  of  one  of  them,  and  transfixing  the  heart,  and  ii 
denting  the  breastbone  ? 

Jl.  The  difficulty  would  be  very  little,  except  in  touching  the  ri 
All  the  other  parts  are  soft  and  yielding,  and  very  easily  separate 
There  is  little  resistance  except  by  the  bone. 

Q.  Could  the  resistance  of  the  rib  be  overcome  by  the  force  of 
man  of  ordinary  muscular  strength  ? 

The  Mayor.  Suppose  there  should  prove  to  be  a  small  fracture 
passing,  and  the  lower  end  of  the  rib  broken  off ? 


97 


fl.  I  should  suppose  the  point  of  the  instrument  might  take  off  a 
small  part  and  penetrate  the  breastbone.  There  would  be  little  re¬ 
sistance  by  the  rib,  and  not  much  obstruction  from  the  breastbone, 
which  is  of  a  much  softer  texture. 

Emmet.  If  you  took  away  a  part  of  the  rib,  would  not  that  create 
a  constant  or  continuing  impediment  ? 

Jl.  If  it  was  only  upon  the  side  or  edge  of  the  rib,  the  moment 
She  part  is  detached,  it  is,  as  to  any  further  resistance  or  to  any  new 
force,  as  if  it  had  not  touched  it  at  all. 

i  Q-  Would  it  not  make  a  groove  through  which  it  must  run  ? 

A-  I  think  the  difficulty  is  so  little  as  not  to  be  computed. 

Q.  Where  was  the  wound,  was  it  not  near  the  backbone  ? 

A-  I  saw  him  expiring,  and  looked  little  further  ;  a  person  un- 
;overed  the  wound,  it  was  nearer  the  back  than  the  exterior  part, 
)ut  the  moment  the  clothes  were  raised,  the  wound  presented  itself 
,o  me,  so  that  it  did  not  require  any  moving  of  the  body. 

Q.  Would  not  one  who  examined  it  have  been  better  able  to  de¬ 
scribe  the  situation  of  it  ? 

A.  I  think  not,  I  had  a  very  distinct  view  of  it. 

Sixteenth  Witness  for  the  Prosecution — Abraham  Fervcden. 

Being  desired  by  Mr.  Fan  Wyck  to  relate  what  he  knew,  this 
fitness  stated  that  he  lived  in  Bergen  county  ;  that  he  accident¬ 
ly  saw  the  afiray  ;  that  when  he  first  saw  the  parties  meet 
le  was  right  opposite  in  Broadway,  on  the  east  side.  He  saw- 
hem  meet  each  other  and  take  a  round  or  two,  and  saw  one  gentle- 
lan  fall.  * 

Q.  Did  you  see  any  thing  in  the  hand  of  either  J 
A.  Yes. 

Q.  What  did  it  appear  to  be  ? 

A.  It  appeared  first  to  be  a  cane. 

Q.  In  whose  hand  was  it  ? 

A-  It  appeared  to  be  in  Mr.  Goodwin’s  hand. 

By  a  member  of  the  Court.  How  do  you  know  it  was  Mr.  Good- 
fin  ? 

A.  The  man  who  had  it  went  away,  and  the  other  who  was  killed 
was  told  was  Mr.  Stoughton. 

Q.  Did  the  cane  separate  ? 

A.  I  do  not  know  whether  it  parted,  or  whether  he  drew  it,  but 
separated,  and  the  dirk  part  he  kept  in  his  hand. 

Q.  Did  he  continue  striking  after  he  had  the  dirk  part  in  hi® 

land  ? 

A.  He  did. 

Q.  Did  he  strike  with  the  dirk  part  at  all  ? 

A.  Yes. 

Q.  Show  how  ? 

i  Witness.  (Clubbing  it  and  striking  over  hand)  This  way, 

Q.  Did  3'ou  see  when  Mr.  Stoughton  fell  ? 

A.  Yes,  I  saw  him  fall. 

Q*  Did  you  see  the  dagger  thrown  away  ? 

13 


98 


A.  I  saw  it  fly  out  of  his  hand. 

Q.  Where  did  it  go  to  ? 

A.  It  flew  oft'  some  distance,  perhaps  eight  or  ten  feet. 

Q.  At  what  time,  or  in  what  part  of  the  controversy  was  that  ?  , 

A.  It  was  after  Mr.  Stoughton  fell. 

Q.  Do  you  recollect  which  way  it  flew  from  him  ? 

A.  They  were  then  in  Courtlandt-street.  It’flew  about  a  north¬ 
west  course  from  where  they  were,  pretty  near  the  centre  of  the 
street  ? 

Q.  Was  this  after  Mr.  Stoughton  got  up  ? 

A.  Yes,  it  was  after  he  made  the  attempt  to  rise. 

Q.  Had  he  got  up  before  Mr.  Goodwin  threw  away  the  dagger* 

A.  He  had  made  an  attempt. 

Q.  Was  there  any  one  then  helping  him  ? 

A.  Not  at  that  time. 

Q.  Where  did  you  see  these  two  gentlemen  first  ? 

A.  On  the  walk  in  Broadway. 

Q.  Did  you  go  over,  and  were  you  with  them  all  that  time  ? 

A.  I  stood  by.  I  went  as  soon  as  1  could  get  across  the  street. 

Q,  Were  there  many  persons  ? 

A.  A  great  many.  I  did  not  know  any  of  them,  except  onfl 
Briggs,  from  our  place,  who  was  with  me. 

Q.  Did  you  see  that  gentleman  ?  (showing  Mr.  Clark.) 

A.  I  do  not  know. 

Q.  Did  you  see  the  prisoner  strike  Mr.  Stoughton  when  he  wa- 
down  ? 

A.  I  did. 

Q.  In  what  manner  did  he  strike  him  ? 

A.  That  way.  (holding  by  the  handle.) 

Q.  You  never  then  saw  him  hold  the  blade  and  strike  him  with  it 

A.  No,  sir,  I  did  not. 

Q.  Were  you  not  sorry- to  see  a  man  so  struck  and  beaten — Di< 
not  you  interfere  at  all  ? 

A.  I  did  not  interfere. 

.Here  one  of  the  jurors  (Mr.  Seaman)  asked  leave  to  speak  witl  i 
his  clerk,  w  hich  was  by  consent  of  parties  granted  ;  but  his  clerl  ! 
came  to  the  bos,  and  spoke  in  the  hearing  of  his  fellow  jurors  an' 
others  present,  Mr.  Seaman  not  leaving  the  jury  box. 

The  Alayor  here  called  the  attention  of  the  counsel,  before  th 
cause  proceeded  farther,  to  the  point,  whether,  supposing  the  jur 
vhould  believe  that  this  wound  was  not  given  by  a  stab,  but  by  con 
sequence  of  some  violence  after  the  contest  began  ;  as  from  a  fal  : 
occasioned  by  a  blow  or  other  violent  act  of  the  prisoner  ;  an 
taking  it  for  granted  that  such  an  act  would  be  manslaughter,  ye 
would  such  proof  support  the  allegation  in  this  indictment  as  to  th 
manner  of  the  death  ?  In  the  case  cited  yesterday,  of  the  on 
holding  the  pitchfork  and  the  other  rushing  on  it,  it  is  presume 
ble  the  manner  of  the  death  w'as  laid  as  it  was  proved. 

The  cause  then  proceeded. 


99 


Seventeenth  Witness  for  the  Prosecution — Major  Richard  Smith. 

Emmet  desired  to  know  what  it  was  intended  to  prove  by  this 
witness. 

Van  Wyck.  To  identify  the  swordcane  and  show  how  the  pr; 
soner  came  by  it. 

Q.  By  Van  Wyck.  Do. you  know  that  swordcane,  sir? 

A.  Yes,  sir,  it  was  once  in  my  possession.  There  was  an  ex¬ 
change  of  sticks  between  Mr.  Goodwin  and  myself.  I  was  dining, 
accidentally,  at  the  City-Hotel,  on  the  Monday  preceding  this  affray. 
Not  being  there  with  any  person  in  particular,  1  discovered,  during 
dinner,  that  Mr,  Goodwin  was  at  the  table,  but  ten  or  twelve  from 
me,  on  my  right,  sitting  at  the  eastern  end  of  the  table,  next  to 
Broadway.  As  the  company  went  off  during  the  afternoon,  whilst 
1  was  sitting  with  a  bottle  of  w'ine  before  me,  Mr.  Goodwin  and  his 
friends  collected  towards  the  end  of  the  table  where  I  was  sitting. 
During  the  afternoon  we  sat  and  drank,  Mr.  Goodwin  and  several 
other  gentlemen.  We  drank  about  half  a  dozen  bottles  of  wine 
between  four  or  five  of  us.  A  variety  of  conversation  took  place 
at  table,  and  about  candlelight,  or  after  sundown,  some  gentlemen 
talked  of  going  to  the  Theatre  ;  and  Mr.  M‘Crea  came  in  and  sat 
between  me  and  Mr.  Goodwin.  I  got  up  and  had  my  hat  in  my  left 
hand,  and  my  stick  in  my  right.  1  had  my  foot  up  on  the  chair.  We 
proposed  meeting  at  the  Theatre  at  nine  o’clock.  Whilst  standing- 
in  that  position,  and  laughing  at  some  little  conversation  that  passed 
about  the  dinner  table,  Mr.  Goodwin,  probably  from  seeing  this 
stick,  proposed  an  exchange  of  sticks,  to  which,  after  some  tri 
fiing  observation,  such  as  that  it  was  a  favourite  stick,  I  assented. 
Mr.  Goodwin,  on  seeing  it,  had  held  out  his  hand  for  it,  so  i 
passed  it  to  him.  lie  said,  there  is  my  stick  on  the  sideboard,  and 
I  will  keep  yours  as  a  keepsake.  1  observed  that  it  opened  too 
easily,  and  that  he  should  keep  the  string  tight  round  it.  The  one 
I  had  from  him  was  smaller,  but  it  had  no  sword  in  it  ;  it  was  a 
common  walking  stick,  with  a  head  mounted  pretty  much  like  this. 
Having  exchanged  canes,  we  all  got  up  and  separated.  We  left 
the  dining  table  ;  myself,  Mr.  M‘Crea,  Mr.  Goodwin,  and  Mr. 
Sheldon.  The  whole  of  this  conversation  took  but  little  time, 
perhaps  four  or  five  minutes,  and  it  was  a  mere  accidental  c  ire  urn 
stance,  little  thought  of  by  me,  or,  as  I  believe,  by  Mr.  Goodwin, 

Cross-examined  by  Hoffman. 

Q.  You  have  known  Mr.  Goodwin  some  time,  sir? 

A.  I  have  known  him  from  his  infancy  :  I  have  been  acquainted 
with  his  family  as  well  as  with  himself. 

Q.  This  cane,  you  say,  was  asked  of  you  merely  as  a  memorial 
or  a  keepsake  ? 

A.  Entirely  so.  It  was  as  unthought  of  till  the  moment  by  him 
as  by  me. 

Q.  When  he  asked  you  for  it  first,  did  he  know  it  was  a  sword- 
cane  ? 


100 


yt.  I  have  visited  him  frequently  'when  he  was  confined  ;  he 
might  have  seen  the  cane,  and  he  might  or  might  not  know  it  had  a 
sword  in  it. 

Van  Wyck.  Had  he  any  opportunity  of  knowing  that  there  was  a 
sword  in  it  ? 

A.  I  have  frequently  visited  him,  but  I  do  not  know  that  he  ever 
law  the  sword,  or  that  it  ever  was  in  his  hands  before. 

Here  the  prosecution  rested. 

EVIDENCE  FOR  THE  PRISONER. 

On  behalf  of  the  prisoner  was  sworn — Win.  L.  Rose. 

Mr.  Rose  stated  that  he  had  seen  the  cane  produced  at  the  in¬ 
quest  of  the  coroner ;  that  it  had  leather  strings  attached  to  it, 
which  this  has  not.  But  after  a  short  explanation,  the  identity  of 
the  instrument  was  admitted. 

Mr.  Wilder  recalled ,  and  examined  by  Emmet. 

Q.  Have  you  any  recollection  of  having  seen  a  dagger  like  that, 
lying  on  the  ground  near  Mr.  Stoughton  where  he  lay  ? 

A.  I  did  see  a  dagger  similar  to  this,  within  a  moment  or  two  after 
they  were  separated,  and  my  impression  is  that  it  was  upon  the 
ground.  If  I  did  see  it  on  the  ground,  it  was  near  where  the 
parties  were.  It  is  possible  it  may  have  been  in  some  person's 
hapd;  but  my  impression  is,  that  it  was  on  the  pavement.  That 
is  my  prevalent  impression,  that  I  saw  it  on  the  pavement  after  the 
parties  had  risen,  and  after  they  were  separated,  after  Mr.  Stoughton 
was  raised  up,  and,  I  think,  when  he  was  leaning  on  the  person’s 
shoulder* 

The  Mayor.  I  think  you  said,  when  you  was  examined  before, 
that  you  could  not  tell  whether  it  was  in  the  hand  of  some  person, 
or  on  the  ground  ? 

Emmet.  Can  you  answer  with  more  precision  now,  whether  you 
saw  it  in  the  hands  of  the  prisoner  ? 

A.  I  am  by  no  means  positive.  But  I  think  not.  The  most  I 
saw  of  the  prisoner  was  when  he  was  looking  for  his  hat.  He  had 
then  a  hat  in  his  hand. 

Witness  for  the  Prisoner — James  W ■  Lovett,  one  of  the  keepers  of 

the  Prison. 

Witness  stated  that  he  saw  the  prisoner  the  next  morning  after 
his  commitment,  and  that  there  was  a  mark  under  his  eye,  which 
seemed  swollen  and  bloodshotten. 

Van  Wyck  now  offered  testimony  to  prove  the  declarations  of  the 
prisoner,  that  he  intended  to  insult  Mr.  Stoughton  ;  and  that  if  Mr. 
Stoughton  attacked  him  in  consequence  of  that  insult,  he  should  use 
his  cane  to  him. 

Hoffman.  As  1  understand  the  testimonjr  offered  now,  we  object 
to  it :  because  it  would  lead  to  inquiries  that  would  be  endless,  d  he 
court  will  see  that  the  previous  declarations,  even  if  once  made, 
may  have  been  afterwards  abandoned  ;  and  ii  they  should  come  now 
before  the  court  isolated,  they  might  fix  upon  the  prisoner  inten- 


101 


!$ons  which  he  had  explicitly  disavowed  :  but  which  disavowal  and 
change  of  intention,  he  could  not  be  prepared  to  prove.  The  gen¬ 
tlemen  offer  to  show  antecedent  expressions  ;  if  they  may  prove 
-expressions  of  yesterday,  they  may  prove  by  the  same  rule,  others 
ever  so  remote. 

Griffin.  We  here  offer  to  show  certain  declarations  not  longer  ago 
than  the  day  before,  as  to  what  he  intended  to  do  in  case  he  met 
Mr.  Stoughton, 

Hoffman.  The  charge  is  manslaughter,  which  in  itself  must  be 
considered  to  arise  on  a  sudden  from  the  immediate  provocation  and 
the  heat  of  passion  at  the  moment.  Now  to  give  a  new  character 
to  this  act,  and  try  us  upon  a  charge  of  murder,  which  we  cannot  be 
prepared  to  meet,  is  against  the  first  principles  of  law.  We  come 
here  to  answer  to  the  transactions  of  that  day  and  that  hour,  not  to 
rebut  other  charges.  We  were  obliged  to  meet  the  witness  as  to 
what  happened  at  the  time  he  struck  with  the  sword  blade,  because 
it  made  part  of  the  transaction.  But  if  these  declarations  amount  to 
any  thing,  it  must  be  where  the  charge  is  murder,  and  the  malice 
prepense  is  essential.  If  the  prisoner  had  been  indicted  for  murder, 
we  might  have  been  prepared  to  obviate  all  possible  charges  of 
malice  aforethought.  In  Selfridge's  Trial,  Chief  Justice  Parker 
confined  the  prosecutor  to  the  very  transaction,  and  it  was  by  con¬ 
sent  that  they  went  into  the  circumstances  between  the  parties. 
Suppose,  for  argument,  that  Mr,  Goodwin  had  first  expressed  an  in¬ 
tention  to  insult  Mr.  Stoughton,  and  had  insulted  him,  and  Mr. 
Stoughton  had  declined  going  into  explanation  or  giving  satisfaction, 
anti  then  the  prisoner  had  said,  1  will  now  have  no  more  to  do 
with  him.  It  would  be  hard  that  his  first  declarations  should  be  pro- 
vedj  when  his  after  declarations  could  not,  because  ofthe  surprise. 

Wells.  As  this  appeared  before  the  inquest,  we  thought  it  our 
duty  to  offer  it,  but  we  do  not  mean  to  press  it. 

The  Mayor.  Then  if  you  do  not  think  it  material,  I  would  rather 
not  give  an  opinion  upon  it.  A  court  should  be  cautious  in  such 
cases  of  volunteering  opinions  not  called  for. 

Van  Wyck.  I  would  willingly  waive  the  testimony  if  it  depended 
entirely  upon  me  :  although  I  must  say,  that  it  will  have  some 
bearing  on  the  question,  and  I  cannot  waive  it  so  as  to  admit,  that 
the  intent  is  immaterial  to  this  cause. 

Emmet.  I  do  not  deny,  that  if  a  party  is  indicted  of  manslaughter, 
and  in  the  course  of  the  trial  the  facts  growing  out  of  the  transac¬ 
tion  would  make  it  murder,  inasmuch  as  they  are  part  of  the  res 
gestae,  they  must  be  given  in  evidence  ;  but  when  they  attempt  to 
give  matters  not  growing  out  of  the  transaction,  nor  essentially 
characterizing  it,  I  conceive  they  are  irrelevant  and  inadmissible. 
What  is  the  prisoner  to  be  prepared  to  meet  ?  The  facts  stated 
in  the  indictment.  He  is  not  supposed  to  be  gifted  with  the 
spirit  of  prophecy,  nor  to  conjecture  or  foresee  things  not  in  the 
indictment,  which  is  the  textbook.  If  it  is  stated  that  he,  of  malice 
aforethought,  did  the  act,  then  that  word  would  apprise  him  that 
malice  aforethought  was  charged  against  him.  When  the  indict 


102 


ruent  is  without  that,  he  dismisses  from  his  nund  all  consideration 
relating  thereto,  and  all  evidence  touching  that  takes  him  by  sur¬ 
prise  :  he  finds  a  ueiv  character,  and  a  different  one,  in  the  middle 
of  the  trial,  given  to  the  otle'nce,  which  of  course  he  is  unprepared 
to  rebut.  It  is  a  rule  held  sacred,  that  a  man  in  the  situation  of  my 
client  is  to  be  apprised  of  every  thing  that  he  is  bound  to  answer  to, 
and  not  when  his  person  is  imprisoned  and  his  mind  ruffled  and 
troubled,  to  be  called  upon  on  a  sudden,  to  rebut,  by  evidence, 
facts  of  which  he  had  no  notice.  He  should  know  every  thing 
that  is  to  be  brought  against  him  before  he  comes  to  trial,  when 
his  mind  is  cool,  and  when  he  can  weigh  the  matter  and  collect 
his  thoughts  ;  and  not  be  attacked,  if  I  may  use  the  phrase,  by  an 
ambuscade  of  evidence  not  appearing  on  the  record.  There  is  no 
question  that  the  testimony  now  offered,  if  it  can  have  a  bearing  on 
the  act  of  the  party,  can  only  be  to  change  manslaughter  into  mur¬ 
der  ;  for  it  can  have  no  bearing  to  alter  the  offence  charged  if  it  was 
accidental,  and  the  antecedent  quarrel  cannot  alter  the  matter  one 
way  nor  the  other,  as  long  as  it  is  a  trial  for  manslaughter. 

Mr.  Emmet  enlarged  upon  this,  and  spoke  particularly  of  one  wit¬ 
ness  who  had  gone  upon  pressing  business  to  the  Havana,  as  soon 
as  it  \yas  known  that  the  prisoner  was  only  charged  with  manslaugh¬ 
ter,  and  was  told  that  his  evidence  would  be  unnecessary  ;  but  who 
would  have  staid,  at  every  risk  and  loss  to  his  own  private  fortune, 
had  not  this  been  understood  :  that  the  court  knew,  also,  that  in 
this  case,  the  witness  could  not  be  examined  out  of  court.  If  a 
declaration  of  a  day  before  would  alter  the  transaction,  so  would 
one  of  a  year  before,  and  my  client  must  be  prepared  for  all  ;  and 
from  the  oracular  language  of  the  counsel,  this  appears  as  but  an 
entering  wedge.  A  day,  a  month,  a  year,  are  all  equal  upon  prin¬ 
ciple,  and  then  we  see  what  a  floodgate  is  thrown  open  to  let  in 
charges  impossible  to  be  answered.  Whatever  makes  a  part  ol'the 
crime  charged  is  evidence ;  and  though.it  tends  to  convict,  we 
cannot  object  to  it.  But  w  here  the  matter  is  not  a  necessary  in¬ 
gredient  to  make  it  either  manslaughter  or  any  other  kind  of  homi¬ 
cide,  it  is  inadmissible.  I  invoke  the  salutary  principles  and  rules 
of  law  laid  down  in  the  trial  of  Selfridge,  ns  the  shield  with  which 
the  law  protects  the  accused,  when  his  life,  his  liberty,  or  his  cha¬ 
racter  is  attacked. 

The  Mayor .  I  have  given  a  previous  intimation  on  this  point :  hut 
made  up  no  opinion,  being  free  to  alter  my  views  upon  hearing 
sufficient  argument.  But  1  must  regret  that  1  am  obliged  to  differ 
with  the  counsel  ;  l  must  say  that  1  do  not  find  this  decided  in  .S cl- 
fridge's  case.  The  matter  was  talked  over  by  the  court  and  the,  bar, 
and  the  court  gave  no  opinion.  The  counsel  agreed  upon  condition 
that  the  evidence  should  go  no  further  than  to  the  point  in  discus¬ 
sion,  and  there  was  no  other  decision.  I  can  find  no  direct  autho¬ 
rity,  and  I  think  the  counsel  must  have  found  none.  We  must 
then  go  upon  general  principles.  It  is  impossible,  in  a  court  con¬ 
stituted  like  this,  to  have  consultations  upon  every  point.  1  there¬ 
fore  give  my  opiniou  : 


103 


The  prisoner  is  indicted  for  manslaughter,  and  here  has  been 
■ompetent  evidence  to  prove  the  fact,  that  the  deceased  came  by  .his 
ieath  through  the  instrumentality  of  the  prisoner.  The  charge  is 
manslaughter,  and  when  the  death  is  proved  to  be  by  his  agency, 
t  is  for  him  to  bring  forward  his  justification  or  excuse.  The  def¬ 
ence  here  must  be,  either  excusable  homicide  per  infortunium ,  oc 
hance-medley,  or  self-defence.  All  the  testimony  must  go  to  the. 
ne  or  the  other  of  these.  And  such  must  be  the  testimony  offered 
y  the  prisoner,  if  it  be  once  admitted  that  he  killed  the  deceased, 
r  if  there  be  evidence  enough  to  put  him  upon  his  defence  on  that 
oint.  Then  he  says  :  “  True  it  is  I  killed  that  man,  but  it  was  the 
esult  of  a  sudden  affray  in  which  1  was  attacked.”  The  prosecu- 
>r  rebuts  this  defence,  by  showing  that  it  was  a  premeditated  one  ; 
nd  to  this  end,  they  offer  the  prisoner’s  conversation  of  the  day 
,efore  :  and  I  do  not  think  it  makes  much  difference  whether  if 
as  a  day  or  a  week  before.  If  it  is  to  be  determined  by  dividing  oi 
me,  the  jury  must  say  what  will  be  the  effect  of  the  distance  of 
le  time,  as  they  judge  of  all  other  circumstances.  But  I  cannot, 
anceive  that,  because  this  gentleman  is  not  indicted  for  murder, 
ley  may  not  show  that  it  was  in  consequence  of  a  premedita- 
d  design.  Suppose,  for  argument  sake,  the  fact  to  be,  that  the 
■isoner  prepared  himself  for  this  rencounter  ?  Suppose  Mr.  Stough- 
n  should  have  told  irs  that  the  night  before,  or  only  a  few  hours 
ifore,  the  prisoner  had  obtained  this  cane,  telling  the  witness  that 
3  wanted  to  chastise  Mr.  Stoughton  with  that  very  instrument: 
it  possible  that  such  declarations  could  not  be  received  when  tlu- 
:fence  set  up  is,  that  it  was  a  sudden  affray  ?  If  they  can  show  that 
:  had  prepared  himself  for  this  thing,  and  had  armed  himself  for 
<e  purpose,  1  cannot  conceive  the  evidence  to  be  improper,  merely 
1  cause  it  is  an  indictment  for  manslaughter.  I  think  the  indictmenr 
apprise  him  of  his  defence,  though  it  did  not  put  him  upon  trial 
ir  murder  ;  he  knew  that  he  was  charged  with  feloniously  killing, 
id  that  he  was  to  rebut  that  charge.  The  distinction  cannot  be 
s  strong  as  the  counsel  insist :  for,  supposing  the  charge  to  be 
nrder,  it  would  not  of  necessity  follow  even  then,  that  he  was  to 
ibut  the  allegation  of  malice  prepense  ;  it  would  depend  upon  hi? 
cm  knowledge  of  the  facts.  And  it  did  not  follow  that  the  prose¬ 
ctor  would,  or  would  not,  produce  evidence  of  the  aforethought 
cilice,  for  it  might  or  might  not  be  implied  from  the  nature  of  the 
t.nsaction,  and  evidence  of  premeditation  might  or  might  not  be. 
g  en.  He  therefore  was  to  be  prepared  or  not,  as  he  thought  fit 
tconsider  his  own  case;  and  it  wbuld  not  surprise  him  less  or 
n  re  than  this  does  now.  My  individual  opinion  is,  that  the  offer 
nde  is  proper  :  that  is,  to  show  by  his  declaration  of  the  dajr  before, 
ti  t  he  had  contemplated  a  rencounter  with  Mr,  Stoughton. 

Emmet  referred  to  several  passages  in  the  trial  of  Mr.  Selfridge , 
al  expressions  used  by  Chief  Justice  Parker. 

The  Mayor  understood  those  expressions  as  applying  to  the  con- 
hversy  beteveen  Mr.  Selfridge  and  Mr.  Benjamin  Austin,  and  not 
allying  to  this  question.  But  after  consulting  the  other  members 


104 


of  the  court,  he  said,  it  was  the  opinion  of  the  court  that  this  evf 
dence  would  be  improper. 

Griffin  then  offered  evidence  of  declarations  and  acts  of  the  pri 
soner  on  the  day  of  the  rencounter ,  hut  was  overruled,  because  it  fel 
under  the  same  principle  on  which  the  former  had  been  refused. 

Doctor  Schieffelin  w  as  called  again  to  show  that  he  had,  when  try 
ing  the  wound  with  the  instrument,  cut  off  the  leather  strings.  Thi 
was  to  obviate  any  objection  as  to  its  identity. 

Mr.  Clark  was  also  recalled  and  asked  at  what  precise  momcr 
he  saw  the  cane. 

Witness.  1  came  in  between  them  and  separated  them,  and  tbl 
other  person,  as  I  have  said,  caught  the  deceased  as  he  was  aboi 
to  fall.  It  was  at  that  time  when  Mr.  Goodwin  and  I  stood  side  b 
side,  that  I  saw  the  dagger  in  his  hand.  When  Mr.  Stoughton  fe 
back  I  kept  my  position  long  enough  to  exchange  looks  with  th 
prisoner.  I  did  not  see  the  dagger  afterwards  till  the  time  the  bod 
was  examined. 

The  Mayor.  In  what  manner  did  he  hold  it  ? 

A.  Carelessly,  thus,  (showing.)  When  Mr,  Stoughton  faintei 
and  I  saw  another  person  catch  him,  l  turned  to  Mr.  Goodwin 
my  right  shoulder  near  to  his  left  ;  and  that  was  the  only  time  i 
saw  it.  I  should  be  willing,  if  it  be  proper,  now  to  add  anotln 
circumstance  that  escaped  my  recollection.  When  the  prison! 
knocked  the  deceased  down,  he  followed,  from  the  force  of  h 
own  blow',  as  it  appeared  to  me,  bending  from  his  hips,  and  wept  c 
the  sidewalk,  stooping  with  the  blow  he  had  given  with  his  rigl 
hand. 

A  Juror.  You  saw  no  dagger  then  in  his  hand  at  the  time  of  b 
first  fall  ? 

A.  No.  The  first  time  I  saw  it,  was  after  Mr.  Stoughton  ros 
when  Mr.  Goodwin  stood  beside  me.  The  weight  of  his  own  bio 
forced  him  forward  so  that  he  stepped  into  the  gutter.  My  impre 
sion  is  distinct  that  the  blow  was  with  the  right  hand.  And  my  r 
collection  is  pretty  clear  that  it  was  a  blow  on  the  head  with  the  li: 

I  was  then  about  as  far  distant  as  the  width  of  Courtlandt-stre! 

I  was  upon  this  corner  and  they  on  the  other.  The  only  twobloi 
that  1  saw,  were,  first  a  blow  from  Mr.  Goodwin  to  Mr.  Stoughto 
which  knocked  him  down,  and  that  which  Mr.  Stoughton  returm 
when  he  rose.  Mr.  Stoughton  fell  nearly  at  full  length,  but  1  thii 
he  saved  his  head  by  taking  the  force  of  the  blow  upon  his  liij 
His  second  fall  was  not  far  from  where  we  stood.  Whether  on  1 
second  fall  they  let  him  dow'n  at  full  length,  or  his  knees  only  ga 
way,  I  cannot  say.  Nor  can  I  recollect  the  very  spot  in  which  ’ 
fell  the  second  time,  but  by  conjecture  from  where  he  fell  the  til 
time.  For  at  the  moment  of  his  second  fall  my  attention  nfl 
first  turned  to  Mr.  Goodwin,  and  afterwards,  when  Mr.  Stought  " 
fell,  1  thought  more  of  his  condition  than  his  position.  1  shou  j 
suppose  it  was  eight  or  ten  feet  from  the  corner  of  the  curbston 

The  Mayor.  Do  you  speak  of  his  feet  being  so  far  distant  ? 


105 


A.  I  have  no  recollection  of  his  body  lying  at  full  length  the 
second  time.  The  first  time  he  fell  at  the  angle  of  about  fo°rty  de¬ 
grees  over  towards  the  opposite  corner.  1  do  not  think  they  suffered 
him  to  lie  down  the  second  time.  The  second  time  he  was  facing 
the  corner  opposite  which  he  fell.  I  think  the  second  time  when  I 
turned  trom  Mr.  Goodwin,  he  was  raised,  or  attempted  to  be  raised. 
But  he  was  never  on  his  back  the  second  time. 

Mr.  Griffin.  Before  the  counsel  for  the  prisoner  proceed  to  ad¬ 
dress  the  jury,  1  will  read,  from  books  of  authority,  some  further 
principles  and  cases  upon  which  we  expect  to  relv. 

Fosters  Introduction  to  the  Discourse  on  Homicide ,  §  1.  p.  255^ 
In  eveiy  charge  of  murder,  the  fuct  of  killing  being  first  proved,  all 
he  cii cumstances  ot  accident,  necessity,  or  infirmity,  are  to  be 
satisfactorily  proved  by  the  prisoner,  unless  they  arise  out  of  the 
Bvidence  produced  against  him  ;  for  the  law  presumeth  the  fact  to 
lave  been  founded  in  malice,  until  the  contrary  appeareth.  And 
'ery  right  it  is  that  the  law  should  so  presume.  The  defendant,  in 
his  instance,  standeth  upon  just  the  same  foot  that  every  other  de¬ 
fendant  doth  :  the  matters  tending  to  justify,  excuse,  or  alleviate, 
,iust  appear  in  evidence  before  he  can  avail  himself  of  them.” 

To  show  that  wherever  the  defence  of  accident  is  relied  on  in  a 
ase  of  homicide,  it  must  appear  that  the  person  committing  the 
omicide  was  not  engaged  in  an  unlawful  act,  or  using  an  unlawful 
weapon.  I  will  read  to  you  from  1  Hazvkins,  111.  ch.  29.  §  1.  “  And 
rst  of  homicide  per  infortunium,  or  by  misadventure,  which  is, 
/here  a  man  in  doing  a  lawful  act,  without  any  intent  of  hurt,  un- 
irtunately  chances  to  kill  another.” 

East,  in  treating  upon  homicide  in  the  prosecution  of  some  act  or 
urpose,  criminal  or  unlawful  in  itself,  wherein  death  ensues,  col- 
ite rally  to  or  beside  the  principal  intent,  vol.  1.  ch.  5.  §  31,  32, 
bserves  : 

1  say,  collaterally  to  or  beside  the  principal  intent,  in  order  to 
istinguijo  this  kind  of  homicide  from  that  before  treated  of  Hnder 
le  general  head  of  malice  aforethought,  where  the  immediate  and 
ading  purpose  of  the  mind  was  destruction  to  another.” 

And  first,  it  is  principally  to  be  observed,  that  if  the  act  on 
hich  death  ensue  be  malum  in  se,  it  will  be  murder  or  manslaugh- 
r,  according  to  the  circumstances  :  if  done  in  prosecution  of  a 
lonious  intent,  however  the  death  ensued  against  or  beside  the 
tent  of  the  party,  it  will  be  murder;  but  if  the  intent  went  no 
ither  than  to  commit  a  bare  trespass,  it  will  be  manslaughter.  As 
here  A  shoots  at  the  poultry  ot  B,  and  by  accident  kills  a  man  :  if 
s  intent  were  to  steal  the  poultry,  which  must  be  collected  from 
ircumstances,  it  will  be  murder,  by  reason  of  that  felonious  intent; 
lit  if  it  were  done  wantonly  and  w-ithout  intent,  it  will  be  barely 
l inslaughter.  A  whips  an  horse  on  which  B  is  riding,  whereupon 
fe  horse  springs  out  and  runs  over  a  child  and  kills  it :  this  is  man* 
Jiughter  in  A,  but  misadventure  in  B.” 

14 


,  “  He  who  voluntarily,  knowingly,  and  unlawfully  intends  hurt  t» 
the  person  of  another,  though  lie  intend  not  death,  yet  if  death  en¬ 
sue,  is  guilty  of  murder  or  manslaughter,  according  to  the  circum¬ 
stances,  As,  if  A  intending  to  beat  B,  happen  to  kill  him,  if  done 
from  preconceived  malice,  or  in  cool  blood  upon  revenge,  it  will 
be  no  alleviation  that  he  did  not  intend  all  the  mischief  that  follow¬ 
ed.” 

Foster,  Disc.  2.  ch.  1 .  s.  1,  2,  speaking  of  homicide  occasioned 
by  accident,  says  :  “  In  order  to  bring  the  case  within  this  descrip¬ 
tion,  the  act  upon  which  death  ensueth  must  be  lawful.  Foi  if  the 
act  be  unlawful,  1  mean  if  it  be  malum  in  se,  the  case  will  amount 
to  felony,  either  murder  or  manslaughter,  as  circumstances  may 
vary  the  nature  of  it.  If  it  be  done  in  prosecution  of  a  felonious 
intention,  it  will  be  murder  ;  but  if  the  intent  went  no  farther 
than  to  commit  a  bare  trespass,  manslaughter.  Though  1  con¬ 
fess  Lord  Coke  seemeth  to  think  otherwise.  “  He  (saith  the 
learned  judge)  that  voluntarily  and  knowingly  intends  hurt  to  the 
person  of  a  man,  though  he  intend  not  death,  yet  if  death  en¬ 
sues,  it  excuseth  not  from  the  guilt  of  murder,  or  manslaughter 
at  least — as  if  A  intends  to  beat  B  but  not  to  kill  him,  yet  il 
death  ensues,  this  is  murder  or  manslaughter,  as  ihe  circumstance! 
of  the  case  happen.” 

1  East,  ch.  5,  §  42.  “  And  therefore  in  Ward’s  case,  who  wai 

challenged  to  tight  by  his  adversary  for  a  public  trial  of  skill  in  box 
ing,  and  was  also  urged  to  engage  by  taunts,  although  the  occarioi 
were  sudden,  yet  having  killed  his  opponent,  he  was  holden  guilt) 
of  manslaughter.” 

Wherever  a  person  uses  an  unlawful  weapon  or  instrument,  thi 
law  considers  him  as  doing  it  at  his  peril. 

1  East,  ch.  5,  §  37.  “  Thus  parents,  masters,  and  other  person 
having  authority  in  foro  domestico.  may  give  reasonable  correctioi  I 
to  those  under  their  care  ;  and  if  death  ensue  from  such  correction  I 
it  v.’ill  be  no  more  than  accidental  death.  But  if  the  correction  ex 
ceed  the  hounds  of  due  moderation,  either  in  the  measure  of  it,  o 
in  the  instrument  made  u.-e  of  for  that  purpose,  il  will  be  eithe 
murder  or  manslaughter,  according  to  the  circumstances.  If  don 
with  a  cudgel,  or  other  thing  not  likely  to  kill,  though  improper  fo 
the  purpose  of  correction,  it  will  be  manslaughter:  if  with  a  dac  i 
gerous  weapon,  likely  to  kill  or  maim,  as  a  pestle  or  great  staff, 
will  be  murder  :  due  regard  being  had  in  both  instances  to  the  ag 
and  strength  of  the  party.  Grey,  a  blacksmith,  struck  his  servai 
with  a  bar  of  iron,  by  way  of  correction  for  improper  behavioui 
bv  which  lie  was  killed  ;  held  murder.  A  woman  kicked  an 
stamped  on  the  belly  of  her  child  ;  and  ruled  the  same.” 

“Yet  though  the  correction  exceed  the  hounds  of  moderation 
yet  the  court  will  pay  a  tender  regard  to  the  nutnre  of  the  pri  * 
vocation,  when  the  act  is  manifestly  accompanied  with  a  good  inten 
and  the  instrument  not  such  as  must,  in  all  probability,  occasic 
death  ;  though  the  party  were  hurried  to  great  excess.  As  wi  J 
the  case  of  a  father,  whose  son  had  frequently  been  guilty  of  stea  1 


107 


ing,  complaints  of  which  had  come  to  the  father,  who  had  often 
corrected  him.  At  length  the  son  being  charged  with  another 
theft,  and  resolutely  deriving  it,  though  proved  against  him,  the 
father,  in  a  passion,  beat  his  son  with  a  rope  by  way  of  chastise¬ 
ment  for  the  offence  so  much,  that  he  died.  The  father  expressed 
the  utmost  horror,  and  was  in  the  greatest  affliction  for  what  he 
had  done,  intending  only  to  have  punished  him  with  such  severity 
a*  to  have  cured  him  of  his  wickedness.  The  learned  judge  who 
tried  the  father;  consulted  his  colleague  in  office  and  the  principal 
counsel  on  the  circuit,  who  all  concurred  in  opinion  that  it  was 
only  manslaughter  :  and  so  it  was  ruled.” 

1  East,  ch„  5.  §  41.  “  Upon  this  distinction  as  to  the  nature  of 
the  weapon,  Sir  John  Chichester's  case  seems  to  have  turned,  who 
unfortunately  killed  his  man- servant  as  he  was  playing  with  him. 
Sir  John  passed  at  him  with  his  sword  in  the  scabbard,  which  the 
latter  parried  with  a  bed-staff.  In  the  heat  of  the  exercise  the 
chape  of  the  scabbard  Hew  off,  and  the  servant  was  killed  by  the 
point  of  the  sword.  Mr.  justice  Foster  thinks,  in  conformity  with 
Lord  Hale,  that  there  was  evidently  a  want  of  common  caution  in 
making  use  of  a  deadly  weapon  in  so  violent  an  exercise,  where  it 
was  highly  probable  that  the  chape  might  be  beaten  off,  which 
would  necessarily  expose  his  servant  to  great  bodily  harm.  It  was 
therefore  rightly  adjudged  to  be  manslaughter.” 

Wherever  a  person  designedly  provokes  a  quarrel,  he  will 
be  considered  the  aggressor  in  that  quarrel,  though  he  may 
have  induced  the  other  party  to  strike  the  first  blow.  (1  East, 
ch.  5,  §  43.)  *•  In  no  case,  however,  will  the  plea  of  provocation 
avail  the  party,  if  it  were  sought  for  and  induced  by  his  own  act,  in 
order  to  afford  him  a  pretence  for  wreaking  his  malice.  As  where 
A  and  B  having  fallen  out,  A  says  he  will  not  strike,  but  will  give 
B  a  pot  of  ale  to  strike  him  ;  on  which  B  strikes,  and  A  kills  him  : 
this  is  murder.” 

“  And  in  all  cases  of  provocation,  in  order  to  extenuate  the  of¬ 
fence,  it  must  appear  that  the  party  killing  acted  upon  such  provo¬ 
cation,  and  not  upon  an  old  grudge,  for  then  it  would  amount  to 
murder.” 

To  the  same  purport  is  1  Hale's  Hist.  P.  C.  p.  457. 

When  Mr.  Griffin  concluded,  some  discussion  took  place  about 
the  propriety  of  adjourning  ;  but  one  of  the  jurors  requested  that 
Mr.  Maltby  Weed  should  be  recalled,  and  that  he  might  be  asked 
a  few  questions  ;  which  was  granted. 

Juror.  When  Mr.  Stoughton  was  lying  on  the  ground,  and  you 
saw  the  dagger  on  the  ground,  how  far  was  it  from  him — was  it  a 
foot  ? 

A.  My  memory  does  not  serve  me  exactly.  It  was  very  near 
him  when  he  lay  the  first  time  on  the  ground. 

The  Mayor  wished  it  to  be  understood,  that  when  the  court  ad¬ 
journed  the  testimony  should  be  closed,  otherwise  the  court  would 


103 


ait  till  twelve  o’clock,  or  till  it  was  gone  through.  It  being  so  un¬ 
derstood  by  both  parties,  the  court  adjourned  at  5  o’clock,  P.  M. 

FOURTH  DAY.— FRIDAY,  MARCH  17,  1820. 

The  Court  met  at  half  past  1 1  o'clock  A.  M. 

PRESENT  AS  BEFORE. 

Proclamation  being  made,  and  the  jury  called  and  answering  to 
their  names,  the  counsel  for  the  prisoner  proceeded  to  sum  up  the 
evidence. 

Ogden,  for  the  Prisoner. 

1  rise,  gentlemen  of  the  jury,  to  sum  up  the  evidence  in  this 
cause,  overwhelmed  with  such  feelings  as  I  never  before  experi¬ 
enced.  The  circumstances  of  the  case  are  so  extraordinary,  and 
the  fact  laid  to  the  charge  of  the  unfortunate  young  gentleman  who 
stands  accused  before  you,  and  whom  1  stand  here  to  defend,  was  at¬ 
tended  with  circumstances  so  shocking  and  so  horrible,  so  calcula¬ 
ted  to  make  a  deep  impression  upon  the  hearts  and  minds  of  every 
citizen  in  this  community,  that  rising  to  address  you  on  behalf  of 
the  accused,  1  should  be  inexcusable  if  I  did  not  feel  the  weight  of 
my  task,  and  the  possibility  that,  however  innocent  the  prisoner 
at  your  bar,  yet  that  he  might  be  convicted. 

You  are  all  but  men,  and  in  a  case  too  well  calculated  to  inflame 
the  passions  and  prejudices  of  men,  what  man  can  say  that  his  judg¬ 
ment  will  remain  clear,  unclouded,  or  unbiassed  ?  I  own  that, 
though  I  believe  this  defendant  innocent,  I  fear  that  he  may  be  con¬ 
victed  ;  because  I  know,  from  my  own  feelings,  and  from  sad  ex¬ 
perience,  that  when  my  passions,  prejudices,  or  feelings,  have  been 
once  strongly  excited  against  an  individual,  I  cannot  afterwards  con¬ 
template  his  case  with  candour. 

1  can  only  therefore  call  upon  you  by  all  that  is  most  precious  to 
you,  to  keep  a  watch  on  your  own  frailty,  and  to  decide  between 
the  people  and  the  prisoner  with  impartiality.  The  fact  which 
gave  rise  to  this  prosecution,  the  dreadful  consequences  of  that 
fact,  the  manner  in  which  the  unfortunate  man  met  with  his  end, 
are  such  as  to  arouse  the  strongest  feelings  in  the  mind  of  every 
one  who  has  heard  the  story  fly  from  mouth  to  mouth.  It  is  impossi¬ 
ble  it  should  be  otherwise. 

Gentlemen,  it  is  not  for  me  to  pass  an  eulogy  on  the  character  of 
the  deceased,  and  it  is  far  from  my  intention  to  say  any  thing  against 
him  :  he  is  gone,  I  hope,  to  a  better  and  a  happier  world.  For  his 
parents  1  feel  every  thing:  would  it  were  possible  for  me  to  pour 
the  balm  of  consolation  into  their  almost  broken  hearts.  But  I 
shall  never  cease  to  regret  that  the  misfortune  of  Mr.  Stoughton  s 
family  had  not  given  rise  to  better  feelings  down  to  the  present 
moment.  I  shall  ever  regret  that  their  hearts,  softened  by  their 
sufferings,  had  not  sought  consolation  where  it  was  to  be  found,  ra¬ 
ther  than  in  vengeance  against  this  unhappy  man  who  stands  before 
you  at  your  bar  ;  for  no  effort  has  been  omitted  to  excite  the  pub- 


109 


lie  indignation  against  my  client,  to  hold  him  up  to  the  world  as  a 
murderer,  and  take  his  life  through  the  instrumentality  ol  a  court 
of  justice. 

Can  it  afford  any  comfort  to  the  friends  of  Mr.  Stoughton  that 
this  young  man  should  be  convicted  ?  Will  it  restore  him  to  their 
arms  ?  Will  they  feel  his  loss  the  less  ?  No,  gentlemen.  But  this  de¬ 
fendant  has  parents  and  friends  also  ;  an  ancient,  venerable,  respect¬ 
ed,  and  beloved  mother :  must  her  heart  too  be  broken  ?  will  that 
relieve  the  feelings  of  Mr.  and  ofMrs.  Stoughton  ?  Their  son  is  gone 
with  a  character  unblemished  and  undisgraced  ;  they  can  still  de¬ 
rive  consolation  fro#i  the  knowledge  that  he  died  undegraded. 
Convict  this  defendant,  send  him  to  the  state  prison,  and  to  his  mo¬ 
ther’s  heart  the  hand  of  an  assassin  would  be  that  of  a  beneficent 
deliverer.  But  1  fear  my  feelings  are  leading  me  further  than  l 
ought  to  go,  and  further  than  1  intended.  1  shall,  1  hope,  be  able  to 
take  a  candid,  /'air,  and  impartial  view  of  the  testimony  in  this 
cause.  1  wish  to  assist  you  in  the  consideration  of  that  testimony, 
by  such  arguments  as  I  can  offer,  and  it  is  not  my  intention,  if  it 
were  in  my  power,  to  stir  your  passions. 

Permit  me  here  to  ask,  what  is  the  question  you  are  to  decide  upon  ? 
Because,  before  we  proceed  to  examine  the  evidence,  it  is  neces¬ 
sary  you  should  have  a  clear  view  ol  the  question  to  which  it  is  ap¬ 
plicable.  The  grand  jury  have  found  a  bill  against  this  defendant, 
for  that  he  with  a  certain  drawn  dagger  or  sword,  which  he  held  in 
his  right  hand,  in  and  upon  the  left  side,  near  the  ninth  rib  of  Mr. 
Stoughton,  did  thrust,  stab,  and  penetrate,  giving  the  deceased  a 
mortal  wound.  To  this  charge,  the  defendant  pleaded  he  was  not 
guilty,  and  the  only  question  is,  whether  the  prisoner  at  the  bar  did, 
holding  that  dagger  in  his  hand,  stab  the  deceased  ?  In  this  case,  as 
in  all  other  criminal  cases,  you  the  jury  are  to  judge  of  the  law  as 
well  as  the  fact :  and  you  will,  no  doubt,  take  advice  from  the  court. 
But  after  all,  it  is  you  that  are  to  decide  both  law  and  fact,  and  I 
arn  happy  to  tell  you,  that  after  a  review  of  all  the  cases  upon  the 
principles  here  to  be  decided,  and  from  the  gravest  authorities  of 
the  law,  you  will  be  enabled  to  decide  without  much  difficulty  :  and 
I  shall  refer  to  some  authorities,  which  seem  to  contain  w  ithin  them¬ 
selves  every  principle  useful  or  necessary  for  your  consideration^ 
Whilst  I  state  them  to  you,  I  am  to  be  understood  at  the  same  time,  as 
submitting  them  to  the  court,  in  the  hope  that  both  court  and  jury  will 
agree,  that  this  is  not  to  be  considered  as  manslaughter.  The  law 
is  without  mystery,  and  founded  upon  clear  principles  of  common 
sense.  Some  cases  render  it  less  clear,  and  there  are  some  which 
the  looking  into  will  rather  perplex  than  enlighten  the  judgment 
of  a  jury.  The  indictment  does  not  charge  manslaughter,  by  that 
general  term,  for  such  an  indictment  would  not  be  good.  The 
overt  act  must,  upon  principles  of  common  justice,'  always  be  set 
forth,  that  the  prisoner  may  know  precisely  what  he  is  charged  to 
answer.  That  course  has  been  properly  pursued  in  this  indict¬ 
ment,  and  the  charge  here  is,  substantially,  that  the  prisoner,  with  a 


110 


dagger  in  his  hand,  struck  the  deceased,  and  gave  him  that  mortal 
wound  of  which  he  died. 

The  booxs  say,  and  the  court  will  so  advise  you,  that  the  manner 
of  the  death  is  an  essential  part  of  the  charge  in  all  cases  of  man¬ 
slaughter.  in  1  East's  Crown  Law,  341,  this  doctrine  is  cleany  ex¬ 
pressed  :  and  if  the  indictment  states  the  death  to  be  by  a  blow,  the 
manner  of  the  blow  must  be  stated.  And  there,  though  the  blow  was 
alleged  to  De  with  a  staff,  and  the  proof  was  of  a  blow  with  a  stone, 
it  was  held  good  proof,  on  the  ground  that  it  was  the  same  kind  of 
woundhig,  viz.  by  a  blow.  If,  However,  gentlemen,  you  should  be  of 
opinion  mat  Air.  Stoughton  fell  upon  this  dagger,  even  though  the 
defendant  had  it  in  his  hand,  he  cannot  be  conv  icted  under  tnis  in¬ 
dictment,  for  that  would  not  be  the  charge  we  came  to  answer  to. 
lu  order  then  to  convict,  you  must  be  convinced,  first,  that  the  fatal 
wouud  was  given  by  the  dagger  held  in  his  hand  ;  and  secondly, 
that  it  was  by  a  thrust  with  that  dagger  he  caused  his  death  ;  and  if 
we  are  wrong  here,  you  must  he  of  opinion  that  the  killing  in  the 
way  1  shall  snow  he  was  killed,  amounted  to  manslaughter.  And  this 
leads  us  to  cou.-ider  what  manslaughter  is.  It  is  not  every  killing  of 
a  man  :  the  killing  may  be  murder,  which  is  the  highest  crime  by 
our  laws  next  to  treason,  or  it  may  be  in  self-defence  and  justiiiable, 
or  by  accident  and  then  excusable  ;  and  whether  it  amount  to  a  crime 
at  all,  must  depend  on  the  nature  of  the  case  and  the  intention  of 
the  party.  If  1  kill  a  man  with  malice  aforethought,  as  if,  in  con¬ 
sequence  of  any  offence,  I  go  deliberately  with  premeditation  and 
kill  him,  it  is  murder  :  because  1  did  it  with  a  lirm  and  fixed  design, 
and  full  intent  to  kill  him.  Iff  kill  a  man  unlawfully  and  wilfully, 
but  without  malice  aforethought,  it  is  not  murder,  but  manslaugh¬ 
ter  ;  lor  example  :  if  1  unexpectedly  get  into  a  quarrel,  and  in  a 
sudden  passion,  having  a  stick  in  my  hand,  1  kill  my  adversary,  it  is 
not  murder,  but  manslaughter,  because  there  was  no  malice  nor  no 
previous  intent ;  but  because  it  shows  an  unjustifiable  degree  of 
passion  it  is  manslaughter,  it  being  a  necessary  principle  upon  which 
the  peace  of  society  depends,  that  men  must  be  taught  to  curb  their 
passions,  and  not  be  hurried  by  their  intemperance  to  the  de¬ 
struction  of  a  fellow  creature. 

If  on  a  sudden  atfray,  without  any  unlawful  act  of  mine,  my  ad¬ 
versary  is  killed,  it  is  accidental  death  :  and  if  it  be  accidental,  it  is 
no  crime  ;  for  no  man  can  be  made  to  answer  criminally  for  the 
consequences  of  a  mere  accident.  So  if  a  man  attack  me  in  the 
street,  and  1  have  just  reason  to  believe  that  he  intends  to  kill  me, 
1  have  a  right  to  take  away  his  life,  because  it  is  an  act  of  self  de¬ 
fence,  and  self-defence  is  the  first  law  of  nature,  and  always  ad¬ 
mitted  by  the  common  law.  These  form  the  substance  of  the 
cases  in  the  Books.  The  gentlemen  caij  find  none,  however  varied 
in  circumstances,  that  do  not  turn  upon  the  principles  1  have  now 
laid  down  ;  for  in  homicide,  as  in  all  other  cases,  it  is  the  intent 
that  constitutes  the  crime.  If  no  intent,  there  is  no  crime  ;  nor  is 
there,  nor  should  there  be  punishment.  If,  therefore,  from  a 
careful  examination  of  the  evidence,  1  shall  be  able  to  show  you 


m 


hat  this  misfortune  proceeded  from  no  evil  intent,  you  are  bound 
to  acquit,  and  never  can  convict. 

Permit  me  now  to  beg  your  patient  attention  while  I  go  through 
he  evidence,  which  I  mean  to  do  carefully  and  candidly,  i  mean  to 
•tate  every  thing  that  makes  either  for  us  or  against  us,  and  if  I 
unit  any  thing,  it  will  not  be  for  want  of  intention  to  give  you  a 
air  and  candid  statement. 

Before  1  proceed  to  dissect  the  evidence,  let  me  ask  if  it  has  not 
lready  left  doubts  upon  your  minds.  Is  there  a  man  who  does 
iot  doubt,  at  this  moment,  whether  this  act  was  committed  by  ac- 
ident,  or  by  design  1  and  if  such  doubts  exist,  you  are  bound  to 
cquit.  All  we  have  to  do,  is  to  show  the  evidence  to  be  doubtful, 
nd  claim  the  merciful  principle  of  the  law,  which  would  rather 
iventy-mne  guilty  should  escape,  than  one  innocent  be  punished, 
he  mayor  has  told  you,  in  the  course  of  the  cause,  that  where 
here  was  doubt  touching  the  admissibility  of  evidence  offered  by 
le  prisoner,  he  was  bound  to  admit  it  rather  than  refuse  it,  the 
iw  always  inclining  to  the  side  of  mercy.  So  if  you  have  any 
oubts  upon  the  whole  evidence,  you  cannot  take  upon  you  to  con- 
ict. 

Let  me  make  another  general  observation.  This  affray  happened 
1  one  of  our  public  streets,  and  the  most  public  in  our  city.  These 
ivo  men  are  found  in  a  scuffle — all  such  things  as  happen  m  an  or- 
nary  scuffle,  would  pass  without  much  observation  by  any  witness, 
2cuuse  nobody  notices  common  and  passing  events.  But  if  any  thing 
nusual  occurs  ;  if  the  assault  was  committed  with  an  unusual  weapon, 
i  an  unusual  way,  it  is  likely  to  fix  the  attention  of  every  man  ;  and 
the  dagger  was  used  to  stab,  it  could  not  be  that  not  a  single  man 
srceived  it.  This  alone  ought  to  acquit  the  defendant,  lor  it  is  im- 
issible,  that  amongst  all  who  were  looking  on,  no  one  should  take 
>tice  of  it. 

But,  gentlemen,  we  do  not  rest  upon  these  general  observations, 
r.  Cambreleng  tells  you  he  saw  the  right  hand  of  Mr.  Goodwin 
e  whole  time  of  the  conflict,  and  till  Mr.  Stoughton  was  on  the 
round.  Is  it  possible  the  stab  should  be  given  and  he  not  see  it  ? 
on  have  heard  of  the  nature  of  this  wound,  the  course  the  in- 
'ru merit  took,  and  the  violence  with  which  it  entered  the  body  of 
e  deceased  between  the  ninth  and  the  tenth  ribs,  with  so  much 
rce  that  it  splintered  off  a  part  of  one  of  those  ribs.  Dr.  Mott, 
■bo  examined  it,  thinks  it  was  part  of  the  tenth,  the  other  doctor 
links,  of  the  ninth  rib.  Dr.  Mott  tells  you  that,  in  his  opinion, 
i  was  beyond  the  strength  of  any  ordinary  man  to  have  inflicted 
hit  wound  ;  that  no  man  of  ordinary  muscular  strength  could  have 
hit  power.  We  are  not  told  how  much  was  splintered  off ;  but 
ir.  Mott  saw  the  rib  and  had  ocular  demonstration,  and  is  the 
loperest  person  to  judge  of  the  force  required.  Dr.  Nelson  tells 
i  that,  in  his  opinion,  it  might  have  been  given  with  a  dagger  in 
te  hands  of  a  man.  But  he  never  saw  the  wound  ;  never  ex- 
nined  more  than  the  orifice  merely.  He  did  not  know  how  much 
Ys  splintered  off,  nor  search  into  it,  but  he  thinks  a  man  could 


J 12 


have  inflicted  it.  He  goes  farther  and  says,  that  not  only  was  it  in  the 
power  of  a  man  to  inflict  it  by  mere  muscular  strength,  thus  forcing 
it  into  the  body,  but  he  has  given  us  a  fact  as  conclusively  demon¬ 
strating  that  it  could  not  be  given  in  that  way,  and  1  think  he  has 
given  an  opinion  not  founded  by  the  fact.  He  tells  us  these  are 
called  false  ribs,  and  are  very  elastic.  Now,  gentlemen,  if  the 
point  of  this  instrument  was  pressed  upon  my  linger,  it  being 
an  elastic  bod}',  would  yield  to  the  weapon  ;  which  shows  that 
the  wound  could  not  have  been  given  by  mere  pressure.  But 
this  rib  was  beyond  question  splintered  :  to  take  a  piece  off  an  I 
elastic  body,  it  must  have  great  velocity  as  well  as  force  ;  there¬ 
fore,  the  very  fact  he  states,  will  show  that  it  could  not  have  been 
given  but  where  velocity  and  force  were  combined.  Dr.  Post  thinks ; 1 
man  bolding  this  dagger  with  the  hand,  might  have  given  this  wound 
but  does  not  say  that  strength  alone,  without  velocity,  could  hav< 
effected  it.  He  thinks  a  man  of  ordinary  force  might  give  it,  bu 
the  gentlemen  did  not  ask  the  question  whether,  without  a  quick 
ened  motion,  mere  strength  could  have  achieved  it.  If,  therefore 
it  was  given  at  all  by  the  hand,  it  must  have  been  given  with  mucl 
force  and  an  extended  arm  ;  and  how  can  you  think  he  brandishei 
it  in  his  right  hand,  extending  his  right  arm  to  acquire  that  accele  ! 
rated  motion,  and  ot  twenty  or  thirty  standers-by  and  lookers-or, 
not  one  pretends  he  saw  it  ?  Is  there  a  man  among  you  then  wh<i| 
will  undertake  to  say,  upon  his  oath,  that  this  was  so,  and  that  h. 
has  no  doubt  it  was  so  ?  If  not,  and  you  have  doubts,  you  mus 
acquit.  If  you  are  not  positive  he  did  inflict  the  wound,  you  neve 
can  convict  him. 

But  now  I  may  be  asked  to  say,  how  was  this  wound  given  ?  T 
that  1  say,  first,  that  it  is  not  material  to  our  defence  to  show  hoi 
it  happened.  1  am  prepared  by  the  cases  cited  by  the  gentlemen,! 
admit  that,  the  killing  being  proved,  the  showing  of  an  excuse  be 
longs  to  the  defendant.  But  1  maintain,  that  they  must  first  begi 
by  showing  that  the  prisoner  killed  the  deceased,  that  lie  did  sta 
him  ;  when  that  is  done,  we  are  bound  to  show  either  that  it  w; 
upon  a  sudden  quarrel,  or  that  we  did  not  intend  to  kill  ;  and  the 
it  will  be  either  murder  or  manslaughter,  unless  it  were  in  self-dt 
fence,  in  which  it  would  be  neither,  hut  an  act  entirely  innocen 
It  is  in  vain-then  to  say  that  we  must  make  out  our  excuse,  for, 
they  do  not  make  out  the  fact  they  charge  us  with,  the  prosecutic  ] 
must  fall  to  the  ground. 

Permit  me  now  to  take  a  view  of  the  evidence  as  to  the  probab’ 
manner  in  which  this  wound  was  given.  My  own  opinion  is,  that  ft 
most  probable,  and  certainly  a  possible  way,  is,  that  when  M 
Stoughton  was  filling,  by  some  accident  or  other,  this  dagger  inn 
have  got  out  of  the  hands  of  Mr.  Goodwin,  entangled  probably  i 
Mr.  Stoughton’s  capes,  and  he  must  have  fallen  upon  it.  And  til 
gains  probability  from  the  position  in  which  he  fell.  Mr.  Canibr 
leng  tells  you  he  fell  on  his  left  hip,  and  the  w'ound  was  nearer  tl 
backbone  than  the  side.  Mr.  Clark  says  that  he  fell  on  his  breer  , 
M‘Gowan  says  on  his  rump.  And  these  are  the  only  witnesses  tl 


113 


speak  as  to  the  manner  of  his  fall  :  and  they  agree  with  the  manner 
in  which  Dr.  Mott  thinks  it  must  have  happened  :  namely,  by  his 
falling  on  the  dagger. 

Thus,  gentlemen,  if  the  wound  was  given  by  Mr.  Goodwin  with 
•hat  dagger,  it  must  have  been  either  the  instant  after  Mr.  Stoughton 
fell,  or  after  he  was  on  the  ground.  Now  the  physicians  one  and 
all  agree,  that  it  was  impossible  to  have  inflicted  it  as  he  was  fall¬ 
ing,  for  then  it  must  have  taken  a  different  course.  He  could  not 
have  given  it  when  he  was  on  the  ground  lying  upon  his  back,  for 
it  was  then  impossible  to  wound  him  in  the  hack.  It  must  then 
have  been  while  he  was  standing  up,  and  before  he  fell. 

Now  what  is  the  evidence  on  the  subject  of  this  fall  ?'  Mr.  Clafk 
says  he  saw  the  defendant  hit  the  deceased  upon  the  head,  and 
with  his  hand,  and  so  knock  him  down,  and  he  saw  nothing  in  Mr. 
Soodwin’s  hand  at  that  time.  If  he  is  to  be  believed,  then  the  blow 
that  knocked  him  down  was  not  given  with  the  dagger  at  all,  nor  at 
he  time  it  was  given  had  he  the  dagger  in  his  baud.  Mr.  Weed 
;ays  it  was  given  with  the  cane  ;  he  saw  but  one  blow,  and  it  was 
that  which  knocked  Mr.  Stoughton  down,  and  with  it  the  sheath 
dew  off.  Mr.  Weir  saw  several  blows  all  given  with  the  cane,  but 
ie  never  saw  the  blade  till  after  all  was  over.  Mr.  Haycock  says 
le  struck  him  with  the  head  or  handle  of  the  cane.  Mr.  Ball  says 
ae  held  it  by  the  blade,  and  so  does  M‘Gowan,  and  that  he  struck 
him  with  the  butt  end  foremost. 

I  am  bound  to  admit,  from  a  view  of  all  this  evidence,  that  Mr. 
ifoodwin  had  this  stick  in  his  hand  at  the  time  Mr.  Stoughton  was 
smocked  dowm,  though  Mr.  Clark  states  he  had  no  stick  in  his  hand 
ff  that  time.  But  I  am  compelled  to  admit  that  he  had  it  in  his 
land,  and  held  it  in  this  way  :  (showing)  and  the  probability  is,  that 
vhile  Mr.  Stoughton  was  in  the  act  of  falling,  this  dagger,  by  some 
infortunate  accident,  must  have  fallen  from  the  hands  of  Mr. 
loodwin,  become  entangled  in  the  clothes  of  Stoughton,  and  he 
lave  fallen  upon  it. 

If  then  I  shall  be  able  to  satisfy  you  that  Mr.  Goodwin  had  the 
agger  in  his  hand  before  the  fall,  and  that  immediately  after  he  had 
t  not,  the  conclusion  is  irresistible  that  he  must  have  lost  it  just  as 
dr.  Stoughton  fell.  Mr.  Clark  was  close  to  them  at  that  moment, 
ind  immediately  interfered  between  them.  The  deceased  was 
iown,  the  prisoner  was  leaning  over  him  :  if  Goodwin  then  held  a 
lugger  in  his  hand,  Clark  must  have  seen  it  ;  and  yet  he  tells  you 
he  first  he  ever  saw  of  it  was  after  Mr.  Stoughton  had  risen  up, 
ind  struck  a  blow  at  the  prisoner,  then  stood  a  while,  and  finally 
linted  away.  The  inference  is  clear,  that  at  that  moment  the  prison- 
;r  had  it  not. 

Mr.  Weed  did  not  see  the  prisoner  have  the  dagger  after  Mr. 
itoughton  fell.  Mr.  Baker  says,  that  when  he  was  down,  he  saw 
dr.  Goodwin  strike  him  several  blows  on  the  head  with  his  open 
rands.  It  is  impossible  that  he  could  then  have  held  the  dagger, 
dr.  M‘Williams  tells  you,  that  when  Mr.  Stoughton  was  down,  the 
efendant,  was  striking  with  his  fists,  and  he  was  the  first  that  came 

15 


114 


upon  the  ground  after  Mr.  Clark.  He  never  saw  him  have  a  stick 
or  any  weapon  till  after  Mr.  Stoughton  fainted.  He  came  up  when 
he  was  on  the  ground  a::d  saw  every  thing  that  passed,  and  was 
confident  he  had  not  the  dirk,  and  never  saw  it  till  after  he  had 
risen  and  fallen  again.  Mr.  Phelps,  who  thinks  the  deceased  must 
have  fallen  as  he  was  crossing  the  street,  never  saw  cane  nor  dag¬ 
ger  at  all.  M‘Gowan  says  he  thinks  it  appeared  to  him  that  he 
saw  the  dagger  on  the  ground,  hut  he  is  not  certain,  and  the  time  he 
speaks  of  was  when  Mr.  Clark  was  there,  and  at  that  time  the  evi¬ 
dence  of  Mr.  Clark  shows  he  had  no  dagger.  Mr.  Wilder  says  he  I 
struck  him  first  with  the  one  hand,  and  then  with  the  other  :  he  ' 
hrffl  a  direct  view  of  him  all  the  time,  and  Mr.  Goodwin  had  no 
weapon  in  his  h  ind.  Mr.  Cambreling  says  that  Mr.  Goodwin  did 
not,  nor  could  not  have  struck  him  with  a  dagger  when  down,  or 
he  must  have  seen  it. 

If  these  were  all  the  witnesses  to  show  that  the  prisoner  had  the 
dagger  when  the  deceased  was  on  the  ground,  is  it  not  conclusive 
that  he  had  it  not  ?  True,  Mr.  Weir  says  that  when  he  was  down, 
the  defendant  was  making  blows  at  him  with  the  stick  ;  hut  where 
was  that  witness  at  the  time  ?  Was  he  close  by  as  were  the  other 
witnesses?  No!  he  was  at  the  opposite  side  of.  Broadway,  either 
coming  up  or  crossing,  hut  still  at  a  considerable  distance.  Is  it 
likely  that  he  saw  as  clearly  as  the  others,  who  were  close  beside 
the  parties?  Mr.  Weir  saw  him  strike  before  the  deceased  fell 
down,  and  confounds,  that  epoch  with  the  lime  when  he  was  down. 
Mr.  Haycock  was  walking  up  Broadway  wifii  two  customhouse 
clerks,  who  were  going  to  their  dinner  ;  they  were  on  the  opposite 
side  of  that  wide  street  ;  and  can  you  conclude  from  their  testimo¬ 
ny,  that  what  those  immediately  present  tell  you  is  not  true  ? 

I  have  now  stated  all  the  evidence  as  to  that  fact.  Six  ol  these  wit¬ 
nesses.  equal  at  least  in  intelligence  to  those  opposed  to  them, 
whose  "opportunities  ot  seeing  were  much  better,  swear  positively, 
that  when  Mr.  Stoughton  was  down,  Mr.  Goodwin  had  not  the  dag¬ 
ger  in  his  li  Hid.  One  witness  is  doubtful ,  and  two  say  he  hod  it. 
Will  you  rely  upon  those  two  who  were  running  across  Broadway, 
and  disbelieve  the  six  who  stood  close  by  ?  1  have,  1  think,  fairly 
stated  all  the  testimony.  1  have  wished  to  disgui-e  nothing,  to  con¬ 
ceal  nothing  ;  and  l  ask  you  now,  as  honest  conscientious  men.  upon 
which  side  you  rind  the  weight  of  evidence  ?  Before  the  fall  of  the 
deceased,  1  admit  the  prisoner  had  the  dagger,  hut  immediately  af¬ 
ter  he  had  it  not.  No  doubt,  then,  it  got  entangled  in  the  clothes 
of  Stoughton,  he  fell  upon  it,  and  to  that  was  ow  ing  the  unfortunate 
catastrophe.  » 

One  witness  only  (Mr.  Haycock)  pretends  lo  say,  that  ns  Mr. 
Stousjhtcn  was  falling,  Mr.  Goodwin  continued  striking  him  with  the 
handle.  If  that  witness  was  to  be  believed,  still  it  would  follow 
that  he  never  could  have  given  the  wound.  He  was  holding  Ihe 
dagger  this  way  :  (with  the  point  towards  his  own  body.)  He  must 
then  have  put  it  out  of  his  hand  when  he  was  about  to  fall  upon  the 
top  of  the  deceased.  If  he  did  that,  and  Stoughton  fell  upon  it, 


115 


cither  in  consequence  of  his  so  dropping  it  to  secure  himself,  or  if 
it  was  in  some  other  manner  that  none  of  us  can  clearly  explain, 
you  are  bound  to  acquit,  for  you  should  never  convict  of  so  griev¬ 
ous  a  charge  upon  uncertain  testimony. 

But,  gentlemen,  two,  1  think,  of  the  witnesses  say,  that  in  their 
opinion,  they  saw  the  blows  that  Mr.  Stoughton  received  from  Mr. 
Goodwin  ;  that  they  were  not  heavy  enough  to  knock  him  down, 
and  that  they  were  surprised  to  see  him  fall  ;  from  which  it  will  be 
inferred,  that  this  wound  was  the  cause  of  his  fall,  and  was  given  of 
course  before  lie  fell.  I  have  shown  that  it  must  have  been  given,  if 
th.it  were  so,  before  numerous  spectators,  who  could  not  but  have 
seen  it ;  but  remember  the  testimony  of  Mr.  Cambreleng,  that  the 
instant  before  the  deceased  fell,  he  had  stepped  back  off  the  curb¬ 
stone  and  tripped,  and  Coodwin,  following  close  and  quickly  after 
him,  may  have  occasioned  the  fall.  If  Mr.  Cambreleng  is  to  he  be¬ 
lieved,  and  no  man  is  entitled  to  more  credit,  Mr.  Stoughton  must 
have  tripped,  and  that,  together  with  the  strokes,  must  have  caused 
him  to  fall  down. 

And,  gentlemen,  as  it  is  my  wish  to  give  you  a  full  and  fair  view  of 
all  the  evidence,  without  the  least  inclination  to  mislead  your  judg¬ 
ments,  1  feel  it  my  duty  to  observe  upon  the  testimony  of  Mr. 
Weed,  when  called  up  yesterday.  He  says,  that  before  Stoughton 
got  up,  he  saw  the  dagger  lying  about  a  foot  from  his  body  ;  from 
which  it  will  be  argued,  that  inasmuch  as  he  was  then  lying  upon 
his  back,  he  could  not  have  fallen  upon  this  dagger,  it  lying  then  at 
some  distance  from  him.  This  1  must  endeavour  to  explain  and  get 
rid  of.  That  witness  says,  that  the  crowd  collected,  and  he  could 
not  afterwards  see  distinctly .  He  may  then  well  be  mistaken.  It 
shows,  at  all  events,  that  the  dagger  was  on  the  ground,  and  did  not 
remain  constantly  in  his  hand,  and  renders  the  subject  only  more 
doubtful  and  perplexing  :  and  if  a  doubt  once  rises  in  your  minds, 
whether  Mr.  Weed  may  not  have  been  mistaken  in  this  evidence, 
instead  of  weighing  against,  is  in  favour  of  the  defendant.  The 
whole  thing  did  not  last  half  a  minute.  Mr.  Weed  thinks  he  saw  the 
dagger,  when  Mr.  Stoughton  lay  upon  his  back,  upon  the  pavement. 
But  from  the  time  when  he  first  fell,  and  even  before  it,  Mr.  Wee.d 
tells  you  himself,  that  he  had  not  a  distinct  view  of  the  parties.  Is  it 
not  then  possible  that  he  may  have  seen  the  dagger  on  the  ground 
the  last  time,  it  being  then  more  likely  to  impress  him  ?  and  he  has 
transferred  the  epoch  by  effect  of  his  imagination,  and  mistaken  one 
moment  for  another.  But  Mr.  Clark  stood  between  the  combatants, 
exactly  alongside  ;  must  he  not  have  seen  the  dagger  if  it  was  there  '{ 
Is  it  not  then  possible  that  Mr.  Weed  may  he  mistaken,  but  mis- 
’.aken  merely  and  only  as  to  the  period  when  it  rvas  visible  to 
aim?  Allow,  then,  that  he  may  have  been  mistaken  as  to  the  mo- 
nent  of  time,  and  then  the  fact  of  the  dagger  being  seen  on  the 
ground,  gives  strong  probability  to  its  having  happened  as  1  state  : 
>ecause  it  shows  at  least,  that  the  dagger  was  certainly,  at  one  time, 
;>ut  of  the  prisoner’s  hand,  however  it  came  into  it  again. 


116 


I  have  n«w,  I  think,  noticed  the  testimony  of  every  witness  ex¬ 
cept  Mr.  Vervalen,  a  man  produced  here  yesterday,  and  swearing 
to  facts  which  1  am  sure  no  gentleman  on  that  jury  can  believe.  1 
do  not  mean  to  go  over  his  evidence,  1  shall  pass  it  by,  merely  ex¬ 
pressing  a  hope  that  he  was  not  improperly  brought  to  testify  to 
things  that  never  happened. 

You  will  be  told  that  you  are.  bound  to  convict,  because  the  pri¬ 
soner  acted  unlawfully,  and  committed  the  first  assault.  The  coun¬ 
sel  on  the  other  side  have  cited  cases  to  show  that  the  first  assault 
being  unlawful,  the  defendant  must  abide  the  consequences  of  it. 
But  vvhat  is  au  assault?  It  is  “  an  attempt  or  offer  to  beat  anothei 
wituout  touching  him,  as  aiming  at  him  in  an  angry  manner,  bu> 
missing  him.”  Now,  he  held  up  that  stick  neither  in  an  angry  man¬ 
ner,  nor  vet  with  an  attempt  to  strike  him  ;  he  held  it,  indeed,  in  ; 
scornful  manner,  but  tiiat  was  no  assault,  nor  would  it  justify  an  as 
6ault  on  the  part  of  Mr.  Stoughton,  no  more  than  words  would 
Then  tne  first  assault  was  by  the  deceased,  und  it  was  not  unlawfu 
in  the  prisoner  to  repel  i  . 

But,  gentlemen,  you  will  be  told,  in  all  probability,  that  thougl 
Mr.  Goodwin  did  not  commit  the  first  assault,  or  commence  thi 
affray,  yet  that  the  words  spoken  by  him  were  intended  to  provok 
it,  and  that  the  night  before,  he  possessed  himself  of  this  swordcane 
and  that  you  must  presume  he  did  so  with  intent  to  use  it  as  it  wa 
used.  It  these  facts  were  true,  if  he  did  procure  it  for  that  purpose 
if  being  so  possessed  of  it,  he  spoke  those  words  for  the  purpose  c 
bringing  on  this  affray,  to  the  end  that  he  might  take  Mr.  Stough 
ton's  life,  I  have  no  hesitation  to  pronounce  him  a  foul  and  a 
atrocious  murderer  ;  and  that  his  indictment  and  trial  should  hav 
been  for  wilful  murder.  But  he  is  no  murderer!  he  is  an  unfortu 
n.ite,  ill-fated,  indiscreet  young  man  ;  and,  therefore,  every  thin 
that  he  has  said  or  done,  is  to  be  brought,  however  casual,  howevc 
indifferent  against  him,  to  convict  him.  A  mere  casual  intercoun 
of  friendship  between  him  and  his  intimate  acquaintance,  Majc 
Smith,  is  made  an  instrument  for  his  destruction.  It  is  not  true  th; 
he  intended  to  bring  on  this  affray  ;  it  is  not  true  that  he  has  bee 
so  foul  a  murderer;  and  that,  notwithstanding  the  caution  tJ 
fasteu  the  string,  he  loosened  it,  the  better  to  accomplish  his  belle 
purpose.  He  is  not  a  guilty,  he  is  an  injured  man  !  He  did  notsiq 
pose  that  Mr.  Stoughton  would  have  returned  and  commenced  Ih 
battle.  He  pointed  the  ringer  of  scorn  as  at  a  man  whom  rightful 
or  wrongfully  he  believed  to  be  a  coward  :  one  that  would  not,  as! 
thought,  turn  upon  him.  Mr.  Stoughton  continued  several  paces,  ai 
the  prisoner  stopped  and  looked  at  him.  If  he  had  intended  an  ? 
fray,  he  would  have  returned  and  repeated  what  he  had  said  in  pas  j 
ing  ;  but  at  the  desit-e  of  his  friend,  he  proceeded  deliberately  <  1 
bis  way.  If  he  had  sought  a  quarrel,  he  would  have  rejoiced  to  si 
his  adversary  turn  about,  and  would  have  seized  the  opportunity 
making  good  his  purpose. 

If,  Gentlemen,  it  had  been  as  he  thought,  this  fatal  occurren 
had  never  taken  place.  He  will  never  cease  to  lament  it ;  he  w 


117 


aver  regret  the  day  he  got  that  cane.  It  was,  indeed,  to  him,  an 
Unusual  arm  ;  not  being  accustomed  to  walk  with  such  a  stick,  not 
recalling  what  had  passed  between  him  and  his  friend,  he  did  not 
even  remember  that  it  had  a  sword.  J  he  moment  he  saw  it  drawn, 
he  used  every  possible  caution  to  avoid  the  mischief  it  might  do. 
He  held  it  short  by  the  blade  and  struck  with  the  handle.  Would  he, 
if  his  intent  was  murder,  have  held  it  so  ?  iN’o,  he  would  not  have 
taken  it  by  the  blacfe  to  avoid  what,  it  is  now  cruelly  insinuated, 
he  did  with  a  felonious  purpose. 

Again,  gentlemen,  if  the  prisoner  had  intentionally  given  this  stab, 
would  he  not  have  gone  oil’  the  moment  the  deceased  fell  down  ? 
would  he  not,  if  he  had  intentionally  killed  him,  have  taken  the 
first  opportunity  to  make  his  escape  ?  But  he  remains  on  the  spot, 
ill  Mr.  Stoughton  gets  up  and  faints  away.  He  then  hears  Mr. 
Phelps  say,  “  he  is  a  dead  man  and  yet  he  remains  stationary 
.ill  the  body  is  carried  into  the  adjoining  store,  till  the  door  is  lock¬ 
ed  ;  and  then  you  find  him  deliberately  looking  for  his  hat.  It 
s  impossible  then  that  he  either  intended,  or  knew  that  he  had  in- 
licted  this  wound.  If  he  was  constious  that  he  had  already  given 
he  deceased  a  fatal  stab,  would  he  have  continued  striking  him 
ifter  he  was  down  ?  There  is  no  man  bad  enough  to  do  that ;  none 
io  base,  or  shameless,  or  depraved,  or  even  so  foolish,  as,  before 
he  eyes  of  the  public,  to  continue  heating  and  insulting  the  lifeless 
corpse  of  one  he  had  murdered  by  a  hidden  stab.  He  would, 
n  the  language  of  Macbeth,  “  have  been  afraid  to  look  on  what  he 
lad  done.”  This  proves,  1  trust,  that  he  never  did,  intentionally, 
:ommit  this  act. 

And  what  was  the  nature  of  these  blows  when  he  was  down  ? 
They  were  not  given  in  anger  ;  they  were  mere  slaps,  denoting  not 
nger,  but  scorn  and  contempt — not  the  ferocious  purposes  of  a  mur- 
erer,  who  had  no  remorse,  no  other  fear,  but  that  be  had  not  done 
nough.  But  since  of  all  those  blows  upon  the  head  of  Mr.  Stough- 
on  when  he  was  down,  not  one  left  any  mark,  the  testimony  of  that 
witness  is  confirmed  who  says  they  were  given  with  the  flat  hand, 
without  intent  to  do  a  serious  injury. 

And  again,  when  the  prisoner  was  first  seen  with  this  dagger, 
fterthe  deceased  got  up,  every  one  agrees  that  he  looked  at  it  with 
urprise.  “  1  did  not  intend  to  draw  this,”  were  his  words,  hold- 
pg  it  forth.  If  he  was  conscious  that  he  had  stabbed  Stoughton  to 
eath,  would  he  have  held  up  to  public  view  the  evidence  of  his 
uilt  ?  If  he  knew  that  he  had  murdered  Stoughton,  would  he  have 
roclaimed  his  own  crime  arid  insured  his  own  conviction  ? 

His  whole  conduct  shows  that  he  was  unconscious  of  any  crime, 
'here  was  nothing  hurried  in  his  manner,  no  desire  to  escape, 
ou  find  him  cool,  deliberate,  and  collected.  If  he  felt  the  guilt 
f  murder  on  his  soul,  he  must  also  have  felt  the  fear  of  human 
istice  ;  and  in  that  state  of  mind  he  could  not  have  been  calm  ;  or 
he  had  such  presence  of  mind,  it  would  have  urged  him  to  escape, 
ut  he  knew  his  own  innocence  :  he  hurried  riot  away.  He  was 
iirprised  at  the  injury  which  he  was,  unconscious  of  having  done. 


118 


He  remained  for  a  time,  not  knowing  what  had  happened.  I 
walked  down  Broadway,  and  not  ■till  it  is  reported  to  him  that! 
adversary  was  a  dead  man,  or  said  to  be  so,  does  he  think  of  sti 
ring;  and  then  he  consults  his  friend,  who  advises  him  to  withdra 
himself  from  the  scene.  Mr.  Cambreleng  tells  him  at  first  that 
is  not  necessary  to  leave  the  city,  for  he  does  not  think  that  M 
Stoughton  could  be  materially  hurt.  But  “  did  you  not  hear 
person  say  he  was  a  dead  man  ?”  Yes,  says  his  friend,  and  perha 
therefore  )ou  had  better  go.  He  tlien  walks  to  the  Elizabethtov 
steamboat.  He  arrives  at  that  place  about  five  o’clock,  and  co 
tinues  there,  in  a  public  house,  two,  three,  or  four  hours,  witho 
any  attempt  to  get  away. 

Now,  gentlemen,  he  was  in  a  post-town,  through  which  the  m 
travels.  He  might  have  gone  in  it  to  Philadelphia,  and  it  wol 
have  been  impossible  ever  to  have  taken  him.  When  the  ofiice 
came,  his  first  question  is  1,1  how  is  Mr.  Stoughton?”  They  tell  him 
is  dead,  and  that  they  are  come  to  take  him.  He  knows  they  ha 
no  power  to  take  him  out  of  that  state  ;  but  he  says,  I  willsurrend 
myself  to  the  laws  of  New-York,  and  depend  upon  a  jury  to  acq 


me.  Was  this  the  conduct  of  a  murderer  ?  Or  is  it  not  the  strongi 


evidence  that  he  did  not  know  or  think  he  had  done  the  act  ? 

It  may  be  asked,  doyou  not  then  attribute  blame  to  this  man  ?  Id 
But  is  there  no  difference  between  the  want  of  discretion,  and  t 
guilt  of  a  felon'  between  thoughtlessness  and  crime  ;  between  tl 
blame  which  attaches  to  every  act  of  imprudence,  and  that  gi 
that  consigns  a  gentleman  to  the  state-prison  and  to  infamy  ?  i 
ought  not  to  have  uttered  the  words  he  spoke.  He  ought  not 
have  done  the  act  he  did.  But  neither  should  you  send  him  to  t 
state  prison,  if  he  is  not  guilty  of  the  felony  of  which  he  he 
stands  charged.  He  has  done  vvhat  was  wrong,  it  is  true.  ButGi 
knows  he  has  suffered  enough.  For  three  months  he  has  lain, 
gaol;  his  reputation  blasted  in  the  eyes  of  many,  and  of  some,  p> 
haps,  forever.  1  say  nothing  of  the  many  sleepless  nights  that  i 
imprudence  has  caused  to  a  venerable  parent  and  a  lovely  sist, 
whose  hearts  have,  and  do  still  cling  to  him,  as  the  object  of  llr 
tenderest  affection  and  their  fondest  hope.  God  knows  he  bass- 
fered  abundantly,  and  he  must  be  relentless  indeed  who  wod 
make  him  suffer  more. 

You  are  told  this  crime  has  been  committed  in  the  public  strei,. 
and  that  it  is  du6  to  our  community  to  make  of’ its  author  an  e, 
ample!  But  1  entreat  you  that  you  do  not  immolate  an  innoct 
victim  for  the  sake  of  an  example.  And  I  trust  you  will  not.  I 
will  hope  that  notwithstanding  every  effort  out  of  doors  to  prejudl 
the  individual,  and  forestall  the  opinion  of  his  jurors,  that  not!>a 
has  found  its  way  into  that  box  where  you  are  arrayed  but  rigby 
ousness  and  mercy  :  that  you  will  proceed,  regardless  of  all  tt 
you  have  heard,  but  from  the  sworn  witnesses:  that  you  will  set  p 
other,  since  you  can  set  no  better  example,  than  that  of  adminUtv 
ing  pure  and  impartial  justice.  1  cannot  but  hope,  what  I  so  e- 
nestly  desire,  that  the  history  of  this  cause  may  rectify  the  pule 


119 


eling,  and  give  a  useful  lesson  to  prevent  in  future  such  practices 
are  disgraceful  to  us  all,  and  amongst  others,  that  of  holding 
man  up  in  public  papers  as  a  culprit  or  a  convict,  before  he  has 
:en  tried.  This  ought  to  be  put  down,  or  no  man  in  our  commu- 
ty  is  safe.  Mark,  gentlemen,  how  these  abuses  operate.  In  the 
;st  moment  of  excited  feeling,  a  coroner’s  jury  found  this  wilful 
■irder.  When  the  public  opinion  bad  but  a  little  time  to  cool,  and 
jn  could  form  a  more  deliberate  judgment,  a  grand  jury,  hearing 
t  the  inculpatory  side,  found  it  manslaughter.  And  now,  1  hope, 
len  all  these  prejudices  have  passed  away,  from  the  minds  at  least 
those  who  have  heard  the  testimony,  you  will  not  shrink  from 
ur  duty  ;  but  that  you  will  have  nerve  to  say,  the  prisoner  is  in¬ 
dent,  and  to  acquit  him  altogether.  I  ask  you  not  for  mercy.  I 
is  justice,  and  cannot  brook  the  thought  of  as!  ving  it  in  vain. 

Emmet  followed  Mr,  Ogden  in  Summing  up  for  the  Prisoner. 

Gentlemen  of  the  jury,  if  I  could  entertain  a  thought,  that 
)  any  thing  which  may  fall  from  me  on  this  occasion,  I  might 
ranee  my  personal  reputation,  I  should  only  cherish  a  vain  and 
(3  expectation  :  if  my  mind  were  occupied  with  any  thing  so 
iit,  I  should  shrink  from  a  comparison  with  those  able  associates 
so  have  preceded  me.  Still  I  am  not  discouraged  from  entertain- 
r  the  hope,  that  in  the  exercise  of  my  professional  duty,  1  shall 
'  able  to  add  some  observations,  though  not  of  equal  force,  yet 
oewhat  conducive  to  the  success  which  we  all  desire  ;  but  which 
3sire  with  different  expectations  from  those  which  have  been 
aressed  by  one  of  my  associates,  i  know  and  feel  that  there  is 
ttake  in  this  trial,  that,  which  if  lost,  will  bring  ruin  on  my  client, 
i  spread  desolation  over  a  numerous,  amiable,  and  respectable 
aily.  But  whether  it  be  that  nature  has  given  to  me  a  more  san- 
tie  and  enthusiastic  disposition  than  to  others,  L  know  not:  I 
a't  confess,  however,  that  I  address  you  with  strong  and  ardent 
ices.  And  if  I  can  instil  into  your  minds  but  half  the  conviction  I 
e  of  my  client’s  innocence,  his  acquittal  is  secure. 

he  district  attorney,  in  stating  to  you  this  case  on  behalf  of  the 
Tsecution,  said,  that  the  excitement  produced  by  the  lamentable 
vnt  which  has  caused  this  trial,  did  honour  to  our  city.  He 
P>e  truly;  but  he  must  admit  that  it  has  formed  a  frightful  im- 
,e  ment  to  the  due  administration  of  justice.  It  was  honourable  to 
u  community,  because  it  bespoke  universal  horror  at  the  atro- 
M*  crime  imputed  to  my  client :  but  there  is  another  feeling 
a  ible  of  doing  still  greater  honour  to  this  city,  the  noble  renun- 
iaon  of  prejudices  and  antipathies,  formed  with  precipitation  and 
Tit,  and  discarded  under  the  influence  of  cool  investigation  and 
e aerate  inquiry.  I  rejoice  to  perceive  how  rapidly  they  have 
isapeared  amidst  the  vast  assemblage  who  have  listened  to  this 
rii,  as  the  testimony  became  developed  ;  and  assuredly  it  will  re¬ 
nt  d  to  the  honour  of  this  community,  to  find  that  an  unprotected 
tr  ger,  against  whom  every  arm  was  nerved,  and  every'  voice  was 
an  d  under  a  belief  of  hie  guilt,  can  safely  commit  his  dearest  in- 

■ 


j 


120 


terests  (unknown  and  unprotected  as  he  is)  to  a  jury,  taken  from  tin 
incensed  community,  and  receive  from  their  patient  attention  an 
examination  of  his  case,  his  own  acquittal,  and  a  recantation  ot  tLos 
preconceived  opinions,  which  seemed  calculateu  to  overwhelm  hu 
in  disgrace  and  ruin. 

And  indeed,  gentlemen  of  the  jury,  I  should  not  indulge  in  th 
expectations  1  have  avowed  to  you,  if  I  did  not  believe  1  was  ai 
dressing  men  wnu  will  not  suffer  any  thing  to  sway  their  minds  b: 
the  testimony  and  the  merits  of  the  cause  ;  who,  when  placed 
that  seat  of  justice,  will  shake  off  and  cast  behind  them  all  thos 
rumours  and  prejudices  which  have  hitherto  preoccupied  the  pu 
lie  mind  :  and  which,  1  must  confess,  took  possession  even  of  m 
self.  For  when  1  first  heard  of  the  dreadful  calamity  which  closi 
the  life  of  Mr.  Stoughton,  1  partook  strongly  of  that  exciteme 
which  agitated  the  whole  city  :  but  l  had  not  conversed  one  n; 
hour  with  my  unfortunate  client  in  his  prison,  till  1  felt  a  convictio 
which  has  ever  since  continued  gaining  strength  in  my  mind,  tb 
he  is  free  from  reproach  as  to  all  criminality  of  act  or  intentit} : 
And  it  is,  because  I  think  it  impossible  an  intelligent  jury  can ’I 
lid,  on  due  consideration  of  the  evidence,  to  arrive  at  a  differe 
conclusion,  that  1  so  confidently  hope  that  the  hour  of  his  delm  j 
ance  is  at  hand. 

'  Gentlemen  of  the  jury,  as  by  the  constitution  of  this  state  it  j| 
your  part  and  your  duty  to  form  your  own  conclusions  of  law  * 
well  as  of  fact,  in  every  criminal  case,  so  it  is  my  duty,  with  the  nr 
entire  confidence  nevertheless  in  the  court  that  presides,  to  1 
down  the  law  applicable  to  the  evidence,  as  well  as  to  comtni 
upon  the  authorities  cited  by  my  adversaries.  And  in  doing  so, 
prepare  your  minds  for  a  more  accurate  examination  of  the  e 
dence  which  I  have  to  discuss. 

The  first  doctrine  1  have  to  remark  upon,  is  the  position  insist 
on  by  our  adversaries,  that  the  burthen  of  the  proof  is  placed  up 
the  prisoner.  This  position  is  founded  upon  an  authority  whip 
shall  endeavour  to  explain,  and  to  repel  its  application  to  this  ca 
It  is  found  in  Foster's  Crown  Law,  p.  255,  as  follows  :  “  In  eve 
charge  of  murder,  the  fact  of  killing  being  frsl  proved ,  all  the  c 
cumstances  of  accident,  necessity,  or  infirmity,  are  to  be  satis) 
torily  proved  by  the  prisoner,  unless  they  arise  out  of  the  eviden 
against  him  :  for  the  law  presumes  the  fact  to  have  been  foundeci 
malice,  until  the  contrary  appeareth.”  That,  gentlemen,  is  ad’ 
trine  I  do  not  mean  to  question  ;  but  the  application  of  it  seem:> 
me  to  be  strangely  misunderstood.  The  rule  of  law'  supposed 
thing  which  the  writer  intended  not  to  be  overlooked,  for  he  I 
caused  it  to  be  printed  in  italics,  “  the  fact  of  killing  being  jl 
proved."  It  is  not  because  a  death  is  proved  to  have  taken  pla. 
that  any  man  who  is  accused  is  put  to  the  necessity  of  proof,  ul 
the  act  of  killing  by  him  is  first  established  :  and  why?  ‘for  e 
law  presumeth  the  fact  to  be  founded  in  malice  till  the  contrary  • 
peareth  that  is,  the  fact  which  the  evidence  establishes  to  be* 
act. 


121 


But  before  the  law  will  raise  any  presumption  against  any  flrao 
’or  any  act,  the  doing  that  act  must  be  first  proved  against  him. 

There  is  also  another  qualification  :  “  unless  the  circumstances, 
ic.  arise  out  of  the  evidence  produced  against  him.” 

We  have  examined  but  one  witness  as  to  the  facts  ;  he  has  not 
;iven  a  new  character  to  ttie  circumstances  which  were  detailed  by 
hose  of  the  prosecution.  On  that  ground,  therefore,  no  burthen 
f  proof  is  thrown  on  us  ;  but  you  are  to  draw  the  natural  infer- 
nces  from  the  facts  stated.  But  what  is  the  true  meaning  of  the 
'ule  itself  ?  An  indictment  avers  facts,  and  states  an  inference  from 
dese  facts  :  when  it  says  that  a  man  committed  the  crime  of  killing 
person  with  malice  aforethought,  then  it  is  an  indictment  for  mur- 
er  ;  and  in  that  case  you  are  not  bound  to  prove  the  malice  afore- 
rought,  if  you  prove  the  killing  by  the  party  accused.  Then  it  is 
lat  it  lies  upon  him  to  prove  the  circumstances  not  averred,  but 
hich,  when  proved  by  him,  are  competent  to  rebut  the  first 
resumption,  and  to  alter  the  character  of  the  transaction — * 
ut  the  law  never  intended  to  say  that  any  part  of  this  pre- 
imption  or  of  tills  rule,  is  to  dispense  with  clear,  sufficient, 
pd  adequate  proof  of  the  facts  laid  in  the  indictment.  And,  gentle- 
en,  the  first  ground  we  take  is,  that  the  evidence  did  not  warrant 
e  conclusion  that  the  death  of  Mr.  Stoughton  was  occasioned  by 
iy  act  of  the  prisoner  ;  however  unexplained  it  may  be  by  him, 
r  inexplicable  by  those  witnesses  who,  though  they  were  present, 
;:t  were  too  much  agitated  to  see  distinctly.  But  till  the  killing  is 
t'st  proved  by  competent  testimony,  in  the  manner  laid  in  the  in- 
ictment,  a  jury  is  not  warranted  in  drawing  any  inference.  My 
fsociate  counsel  has  truly  told  you,  all  that  you  are  to  try  is  to  be 
f  ind  in  the  indictment :  it  is  your  text  book  :  it  was,  therefore,  read 
t  you  when  the  prisoner  was  given  to  you  in  charge.  Let  us  there- 
f’e  refer  to  it :  it  states  that  Robert  M.  Goodwin,  in  the  peace  of 
(>d  and  the  people,  in  the  fury  of  his  mind  made  an  assault,  and 
tit  he  made  that  assault  with  a  certain  drawn  sword,  which  he 
i  his  right  hand  then  and  there  held,  and  that  he  ga  e  him  with 
tit  instrument  so  held  in  his  right  hand,  a  mortal  wound  near  the 
mth  rib.  It  states  that  he  with  the  said  sword  did  thrust  and  pene- 
t  te  his  body. 

Mow,  gentlemen,  there  may  be,  and  there  are  averments  in  that  in- 
d  tment,  which  are  not  essential  to  constitute  the  crime,  and  their 
pj'iof  rnay  be  dispensed  with  ;  but  the  truth  of  every  fact  material 
tfconstitute  the  crime  must  be  proved  as  laid,  or  must  be  a  neces- 
s;y  consequence  from  facts  which  are  proved.  You  have  no 
ri  it  to  extend  the  accusation,  and  say  that  he  is  guilty  of  any  other 
tbg  but  that  which  has  been  given  to  you  in  charge.  Letfis  then 
S(  what  averments  in  that  indictment  are  essential  and  necessary. 

!  )  not  mean  to  mislead  you  by  saying  that  certain  parts  of  this  re- 
C(d  may  not  properly  be  considered  as  mere  formalities  ;  but  I 
m;;t  confidently  say,  that  these  parts  are  essential,  and  the  proofs 
otthem  indisputable  :  first,  that  he  made  an  assault  upon  James 
St  jghton  :  and  that  term  assault  is  to  be  understood  in  the  legal  ac= 

Ifi 


1<V>- 

X  w 


captation  of  the  word.  I  admit  that  if  cv.e  commits  an  excessive 
outrage  upon  another  who  has  tirst  assaulted  him,  and  kiil»  him 
that  is  an  assault  within  the  term  ol  the  indictment  ;  hut  if  there  is 
not  an  excess  on  the  part  of  the  prisoner,  nor  any  other  act,  such  as, 
if  he  were  indicted  for  an  assault,  would  be  sufficient  to  convict  him, 
the  averment  that  he  made  an  assault  is  legally  falsified.  Secondly  .this, 
also,  is  essential  in  the  framing  of  toe  indictment g.  that  he,  with  a 
certain  drawn  sword  or  dagger,  which  he  in  his  hand  then  and 
there  ,eld,  him  the  said  James  Stoughton  did  stab,  thrust  and  pene¬ 
trate,  giving  to  him  a  W'ound  on  some  part  of  the  b<Jdy  that  will  cor¬ 
respond,  or  nearly  so,  with  the  description  in  the  indictment.  Bv 
taking  this  indictment  therefore  as  your  guide,  you  will  distinguisl 
what  you  are  to  find  and  pass  upon  ;  but  observestill  further,  jot 
are  not  to  rind  any  of  those  facts,  however  properly  charged,  ot  the 
certainty  of  which  you  have  a  reasonable  doubt  ;  and  .,s  it  is  the  bu 
siness  of  the  prosecutor  to  establish  with  certainty  every  fact  he  ha 
averred,  doubt  alone  gives  to  my  client  the  right  to  his  acquittal 
Yon  cannot  satisfy  your  consciences  by  finding  something,  i  knot 
not  what,  but  something  that  you  should  suppose  nearly  allied  t 
the  offence  given  you  in  charge.  Exceptions  to  this  rule  wer 
staled  and  referred  to,  in  hopes  of  inducing  you  so  to  do.  All  th 
authorities  relied  on  by  our  adversaries,  are  to  be  found  in  2  Chill, 
Cr.  Lair,  734.  From  them  we  can  collect  that  an  allegation  of  or 
kind  of  death  is  never  supported  by  evidence  of  another  essen  ial! 
different ;  so  that  if  it  be  alleged  that  the  murder  was  committed  t 
stabbing,  and  it  be  shown  to  have  been  by  drowning  or  poisonin 
the  prisoner  must  be  acquitted.  This  is  the  general  doctrine  :’tl 
exceptions  are,  that  the  particular  species  of  weapon  need  not  t  i 
ways  be  exactly  proved  :  for  instance,  the  allegation  of  assaultr  I 
with  a  staff,  is  proved  by  evidence  of  violence  offered  by  striki 
with  a  stone  in  the  band  ;  and  an  indictment  for  murder  by  o 
sort  of  poison,  is  supported  by  proof  of  murder  by  poison  of  anoth  • 
kind.  But  the  act  of  the  party  is  alzvays  material,  and  so  far  as  t  •. 
Jates  to  that,  the  cause  which  conduced  to  the  death,  must  be  , 
ways  proved  as  laid.  The  instrument  or  the  poison  may  be  irau  ■ 
terial,  because  ft  makes  no. act  of  the  par  ty .  and  therefore  soi  9 
certain  act  done  by  him,  if  proved  as  stated,  w  il!  maintain  the  indi- 
merit,  though  done  with  a  different  w  eapon  :  but  in  every  install] 
the  act  of  the  party  which  caused  the  death  must  he  proved! 
charged.  Take  the  first  instance,  of  the  m  n  charged  with  strika 
with  a  stick,  and  proved  to  have  struck  With  a  stone  :  In  recnrrB 
to  the  original  authority  in  1  East,  P.  C.  341,  it  is  manifest  that  | 
was  a  stone  not  thrown  as  a  missile  weapon,  but  held  in  the  ha  Jj 
and  used  as  a  staff  to  strike  Willi.  The  act  of  the  party  is  the  sun 
in  both  c  -os  ;  and  1  may  confidently  siv,  there  is  no  case  wh# 
a  conviction  was  ever  had.  ir  it  was  proved  lie  struck  with  a  si, 
and  it  was  charged  to  he  a  ti,  atli  occasioned  by  the  thronin'^ rd 
stone.  It  has  been  only  when  the  manner  of  using  the  thing,  or  e 
nature  of  the  killing,  was  identically  the  sftme.  So  it  would  in  * 
eo  difference  if  it  were  charged  to  be  a  poisoning  with  arsenic,  d| 


123 


proved  to  be  with  sugar  of  lead,  or  corrosive  sublimate.  It  is  his 
act  that  must  be  proved,  and  ins  act  is  the  same  in  both. 

The  counsel  here  referred  to  several  approved  precedents  of 
indictments,  and  read  from  them  to  show  with  what  particularity 
the  manner  of  the  death,  and  the  act  of  the  defendant,  was  always 
laid,  being  the  most  material  part  of  the  indictment.  See  Mary 
Bluady's  case,  Or.  Cir.  Ass.  p.  2U3,  which  was  a  charge  ot  poison¬ 
ing,  and  the  manner  and  contrivance  of  the  defendant  in  laying  the 
poison  for  the  deceased,  that  he  might  take  it  in  ignorance,  is  stated 
with  great  particularity  ;  and  see-other  precedents  of  like  nature,  lb. 

Now  it  fs  manifest  that  if  the  prisoner  can  be  indicted  at  all, 
the  only  way  in  which  this  fatal  accident  can  have  taken  place  was, 
by  the  knocking  or  throwing  of  Mr.  Stoughton  down  by  Mr.  Good¬ 
win,  when  the  dagger  was  on  the  ground.  Let  me  then  illustrate 
my  position  from  the  indictment  just  read.  Suppose  a  man  gives  a 
shove  to  another,  by  no  means  calculated  to  cause  bis  death,  but 
th.it  in  consequence  of  that  sho.ve,  he  falls  into  a  cellar  and  frac¬ 
tures  his  skull,  or  into  a  pound  where  he  is  drowned  :  would  it  be 
correct  in  either  case,  to  say  he  gave  him  a  mortal  wound  ?  Neither 
would  it  in  this  case.  1  repeat  it,  you  may  lay  the  act  as  far  as  con¬ 
cerns  the  weapon,  with  a  certain  latitude  :  but  the  act  of  the  party 
from  which  death  has  ensued,  must  be  described  truly  without  any 
latitude  whatever. 

This  principle  then,  if  -I  -have  established  it,  is,  in  my  judgment, 
entirely  applicable  and  fully  sufficient  tor  the  acquittal  of  my  client, 
even  though  it  should  be  believed  that  a  homicide  was  commitied 
by  an  unlawful  act  of  bis.  Even  supposing,  for  argument  sake,  that 
he  was  responsible  for  the  act  of  shoving  or  casting  the  deceased  on 
the  ground,  yet  the  indictment  should  state  that  the  death  resulted 
from  that  casting  on  the  ground. 

It  follows,  therefore,  that  under  this  indictment,  Mr.  Goodwin 
cannot  be  convicted,  though  you  should  believe  that  death  was 
caused  by  the  fall  of  Stoughton  on  the  weapon,  and  that  such  fall 
was  produced  by  an  unlawful  act  of  Goodwin,  unless  you  believe 
he  gave  a  thrust  or  actual  stab.  For  though  the  law  might,  in  that 
case,  visit  upon  him  the  consequences  of  the  illegal  act,  yet,  under 
this  indictment,  he  cannot  possibly  be  convicted. 

There  is  a  doctrine  which  stands  upon  ancient  and  venerable  au¬ 
thority,  which  has  been  in  some  respects  questioned  ;  but  which  for 
the  purpose  of  my  argument  is,  1  think,  established  even  from  the 
discussions  it  has  undergone  :  (2  Hale ,  184.)  where  it  is  laid  down  that 
if  the  indictment  charges  that  the  prisoner  gave  a  mortal  wound, 
without  saying  that  he  struck,  it  would  not  be  sufficient.  A  later  au¬ 
thor,  Mr.  Hawkins,  seems  to  doubt  of  this,  but  let  us  see  upon  what 
authority  :  (Hawk.  Pl.  Cr.  b.  2.  ch.  23.  §  82.)  It  is  not  safe,  he 
says,  to  omit  the  word  percussit :  (that  he  struck)  and  by  the  au¬ 
thority  of  some  books,  he  says,  it  cannot  be  supplied  by  stating  that 
he  gave  a  mortal  wound  :  ( dedit  mortale  vulnus )  yet,  in  Coke's  Re¬ 
ports,  he  adds,  this  doctrine  seems  to  be  questioned,  neither  do  £ 
find  any  particular  reason  why  the  word  percussit  should  be  of  sue% 


I 


124 


absolute  necessity  ;  for  it  is  not  pretended  in  the  case  [Long's  cose) 
which  is  the  chief  foundation  of  this  opinion,  that  it  is  a  word  of 
art  appropriated  to  this  use  :  but  all  that  seems  contended  for  there 
is,  that  where  the  death  was  occasioned  by  any  external  \iolencc, 
coming  under  the  notion  of  striking,  it  must  expressly  appear  that  a 
stroke  was  given.”  It  is,  therefore,  clear,  even  from  Hawkins'  au¬ 
thority,  that  when  a  stroke  is  laid  as  the  cause  of  the  death,  proof  . 
of  a  stroke  is  indispensable.  The  using  of  the  words  strike  or  stab 
imy,  perhaps,  sometimes  be  dispensed  with  ;  but  never  the  proof 
of  a  stroke  or  blow,  if  the  death  be  charged  to  have  proceeded 
from  a  stroke  or  a  blow.  And  1  therefore  contend,  that  if  the  fact 
of  the  defendant’s  striking  the  deceased  with  that  dagger,  and  there¬ 
by  giving  him  a  mortal  wound,  be  not  here  proved,  then  this  in¬ 
dictment  is  not  proved,  and  no  conviction  can  follow,  even  though 
the  prisoner  should  be  guilty  of  some  other  act  which  might,  per¬ 
haps,  be  construed  into  an  act  of  manslaughter.  Until  some  act  of 
striking  is  proved,  either  by  direct  evidence,  or  such  combination 
of  circumstances  as  make  it  a  necessary  inference,  we  are  not 
obliged  to  take  the  burthen  of  the  proof  upon  us.  The  public  pro¬ 
secutor  has  never  reached  that  goal  he  proposed  to  arrive  at,  when 
he  put  that  averment  upon  the  record  ;  and  if  he  only  left  a 
doubt  upon  your  minds,  whether  there  was  a  stroke,  and  has  not 
altogether  satisfied  your  judgment  and  your  merciful  consciences, 
and  your  oaths,  on  that  subject,  then  he  has  not  yet  put  us  on  our 
defence. 

But,  gentlemen  of  the  jury,  there  are  other  principles  more  im¬ 
portant  to  the  character  and  reputation  of  my  client,  which  also 
conduce  to  his  acquittal.  1  began  by  saying,  that  in  every  act  of 
manslaughter,  the  act  of  the  party  causing  the  death  must  be  a  vo- 
luntary  one.  And  I  wish  this  position  to  be  accurately  taken  down, 
and  marked  and  understood  by  you  all,  because  to  me  it  seems  clear 
as  demonstration  can  make  it,  that  manslaughter  cannot  be  com¬ 
mitted,  unless  the  act  which  caused  the  death  was  voluntary.  If  1 
doubted  as  to  my  own  correctness  on  this  position,  I  should  derive 
infinite  confidence  from  the  definition  given  by  Judge  Parker ,  on  the 
trial  of  Selfridge,  p.  158,  that  the  crime  of  manslaughter  consists  in 
the  unlawful  and  wilful  killing  a  reasonable  being,  without  malice 
express  or  implied,  and  without  any  reasonable  cause.  The  act 
then  must  be  wilful  as  well  as  unlawful.  One  may  kill  another  wil¬ 
fully  and  be  innocent :  the  act  occasioning  the  death  may  be  un¬ 
lawful  and  he  may  be  innocent :  but  this  definition  so  coupling  these 
term*.  is  one  that  is  perfect  and  never  can  be  shaken. 

But  let  not  the  word  wilful  be  misunderstood.  What  then,  it 
may  be  asked,  is  its  meaning  ?  1  say,  proceeding  from  the  will  of 
the  party.  I  admit  the  death  may  be  manslaughter,  though  it  hap¬ 
pened  in  consequence  of  an  act  by  which  the  accused  did  not  mean 
to  cause  death  ;  but  it  must  be  a  voluntary  act,  whatever  its  conse¬ 
quences  may  be,  before  it  can  render  the  party  guilty  of  man¬ 
slaughter.  Where  any  part  of  the  system  of  our  law  has  a  rela- 
r.on  to,  or  connection  with  another,  the  parts  so  connected  are  mu- 


125 


tually  strengthened  and  confirmed  ;  I  therefore  support  this  doc¬ 
trine  by  recurring  to  an  authority  I  have  already  cited.  When  it 
said  that  the  words  strike  or  stab  must  be  laid  in  the  indictment,  it  is 
meant  that  it  may  be  put  in  issue  whether  the  defendant  did  that  un¬ 
lawful  and  -wilful  act  of  striking  or  stabbing.  That,  then,  is  the  mean¬ 
ing  of  the  definition  by  Mr.  Justice  Parker,  in  which  the  law  is  thus 
briefly  expressed,  that  manslaughter  is  the  unlawful  and  wilful 
killing,  &c.  though  without  malice  either  express  or  implied.  And 
1  go  farther  and  say  that  this  is,  without  exception,  the  doctrine 
which  must  be  deduced  from  every  English  case  that  has  or  can 
be  referred  to.  J  o  prove  this,  1  the  rather  take  the  cases  which 
the  learned  counsel  opposed  to  me  have  cited,  because  1  am  bound 
to  presume  and  do  presume  that  they  are  selected  with  the  greatest 
care  and  judgment  in  their  own  favour. 

(Here  the  mayor  asked  Mr.  Emmet  whether  he  had  found  in  any 
book  of  authority  that  the  word  wilful  was  held  essential  in  the  de¬ 
finition  of  manslaughter — to  which  Mr.  Emmet  replied  that  he  had  : 
he  cited  the  words  of  Judge  Parker,  and  only  added  this  commen¬ 
tary  of  his  own,  on  the  word  wilful,  that  it  must  be  the  voluntary 
act  of  the  party  killing.  He  then  proceeded.) 

The  first  case  cited  merely  went  to  the  distinction  between  mur¬ 
der  and  manslaughter.  It  is  said  in  1  Hale,  P.  C.  475,  that  if  A 
throw  a  stone  to  kill  the  poultry  or  cattle  of  B  and  the  stone  hit 
and  kill  a  bystander,  it  is  manslaughter,  because  the  act  was  unlawful, 
but  it  is  not  murder.  God  forbid,  I  may  add  in  passing,  that  it  should 
be  held  so  here,  where  it  would  inflict  upon  the  party  the  dreadful 
penalty  of  the  law  ;  and  I  must  confess  that  from  my  earliest  stu¬ 
dies  in  the  profession,  1  have  never  ceased  to  regard  this  doctrine 
with  horror,  when  such  a  case  is  put  as  that  of  a  boy  shooting 
playfully  at  a  bird  on  the  road,  and  unintentionally  killing  a  man,  a 
stranger  against  whom  he  could  have  no  malice,  or  his  playmate,  or 
his  brother,  and  he  is  adjudged  to  have  committed  manslaughter. 
Though  I  admit  it  to  be  the  law  of  England,  yet  1  have  never  read 
the  position  without  shrinking  into  myself.  In  that  case,  however, 
the  act  of  the  boy  was  voluntary — he  intended  to  shoof ;  the  killing 
was  by  an  act  he  intended  to  commit,  though  he  never  calculated 
the  consequences  of  that  act  to  be  the  death  of  another.  In  the 
case  of  Ward,  the  boxer,  (1  East,  270.)  Ward  intended  to  hit  the 
blow,  although  he  never  thought  that  death  would  follow  from  it. 
So  in  Sir  John  Chichester's  case,  fencing  in  sport  with  his  servant, 
who  probably  might  have  been  reared  up  with  himself  in  habits  of 
familiarity  from  early  youth,  and  whom,  to  use  Lord  Hale's  words, 
he  very  well  loved,  from  the  accident  of  his  scabbard’s  being  strick¬ 
en  oil  by  his'  servant,  the  point  of  his  rapier  accidentally'  wounded 
his  groin  and  Sir  John  was  found  guilty  of  manslaughter.  This,  to 
all  human  feeling,  must  appear  one  of  the  harshest  cases  in  which 
technical  subtlety  ever  prevailed  to  overwhelm  a  wretched  man, 
and  afflict  the  afflicted.  But  still  it  confirms  my  position  :  for  there 
the  defendant  intended  to  make  the  thrust ;  and  though  he  did  not 
intend  the  death,  it  was  his  undoubted  apd  voluntary  act  that  caused 


12(5 


it.  In  Sno-v's  case ,  the  boy  who  committed  the  crime  had  come 
home  intoxicated  and  insulted  his  fither.  His  brother  threw  him 
down  and  gave  him  some  blows  ;  he  drew  his  penknife,  and  with¬ 
out  intending  to  cause  his  brother’s  death,  but  indulging  his  pas-ion, 
he  intentionally  used  bis  knife  for  the  purpose  of  making  a  stab  at 
his  brother.  Indeed,  without  going  through  the  tedious  range  of 
all  the  authorities  in  the  English  books,  l  will  venture  to  affirm,  that 
there  is  not  one  where  the  wilfulness  of  the  act  did  not  enter  as  art 
ingredient  into  the  crime  of  manslaughter.  1  shall  now  allude,  in 
confirmation  of  this  position,  to  two  cases  stated  by  Hale,  referred 
to  by  .Mr.  Hiffirian,  and  also  cited  by  the  opposite  counsel  ;  but 
which  did  not,  according  to  the  intimation  of  the  court  on  yester¬ 
day’s  argument,  go  as  far  as  we  could  wish.  While  I  now  read  the  pas¬ 
sage  in  1  Hale,  P-  C.  4t!0, 1  request  you  to  observe  that  there  are  two 
situations  contemplated  in  this  statement :  First,  A  assaults  C,  who 
flies  to  the  wall,  holding  his  sword,  knife  or  pike  in  his  nand  ;  or  tails, 
holding  his  sword,  knife  or  pike  in  his  hand  ;  A  runs  violently  upon 
the  knife  of  B,  without  any  thrust  or  stroke  offered  at  him  by  B, 
and  thereupon  dies  :  this  is  death  by  misadventure,  (per  unforiunium .) 
Where  'is  the  difference  of  principle,  or  even  of  circumstances, 
between  one  of  the  alternatives  put  by  Lord  Hale  and  this  case  ?  A 
assaults  B,  who  falls,  holding  his  sword,  knife  or  pike  in  his  baud,  A 
falls  on  it  without  any  thrust  or  stroke  offered  at  him  by  B,  and 
thereupon  dies  :  this  is  death  by  misadventure.  The  principle 
does  not  depend  upon  B’s  actually  failing ;  but  upon  A’s  falling  on 
the  sword,  without  any  thrust  or  stroke  offered  at  him  by  B.  Nei¬ 
ther  does  the  principle  of  that  case  in  any  respect  turn  upon  any 
part  of  the  law  of  self-d -fence  ;  for  then  Lord  Hale  would  have 
said  it  was  a  c  use  of  justifiable  homicide,  and  of  a  nature  entirely  dis¬ 
tinct  from  misadventure,  which  is  only  excusable.  The  falling  of 
B  is  only  mentioned  to  manifest  that  the  wound  must  have  been  un¬ 
intentional  ;  and  (lie  lirst  assault  bv  A,  and  B’s  retreating  to  the  wall 
are  only  mentioned  to  show  that  B  was  doing  no  wilful  act  ;  but  the  f 
true  state  of  the  case  was,  that  the  one  party  merely  held  the  wea¬ 
pon  on  which  the  other  fell.  And  it  proves  all  1  say,  that  if  in  a 
casual  rencounter  one  party  meets  his  death,  but  without  thrust  or 
stab  iflven  by  the  other,  or  voluntary  act  causing  the  death,  it  is 
misadventure.  To  say  that  one  held  the  sword  and  the  other  ran 
on  it,  is  no  more  than  to  say,  that  if  there  is  no  intent  in  the  party  % 
to  do  that  very  act  which  caused  the  death,  it  ceases  to  be  man-  ( 
slaughter,  and  becomes  misadventure.  It  is  true  it  is  the  person 
assaulting  that  has  met  with  the  misfortune,  and  such  was  also  the 
fact  in  that  instance  ;  hut  on  the  subject  of  manslaughter  it  stands  on 
equal  footing  in  the  law,  whether  the  assaulter  or  the  assaulted  fell, 
though  in  murder  it  is  different :  the  making  of  the  assault  is  then 
material  ;  but  when  the  thrust  or  stab  has  never  been  given,  nor  the 
death  arisen  from  a  voluntary  act,  it  cannot  be  manslaughter,  and 
must  he  misadventure.  So  in  page  493  of  the  same  book  ;  if  B 
having  a  pitchfork  in  his  hand,  A  assaults  him  so  fiercely  that  he 
runs  upon  the  pitchfork,  B  offering  no  thrust  at  all  against  A  j  though 


127 


his  be  .a  very  difficult  matter  to  suppose,  yet,  if  the  fact  be  suppl¬ 
ed  to  be  so,  he  says,  B  forfeits  no  goods,  because  it  was  the  act  of  A 
rimself ;  and  some  have  said  rather  that  in  that  case  A  is  felo  de  ser 
Phis  case  also  keeps  up  the  uniformity  of  the  principle,  that  man* 
laughter  must  be  by  a  voluntary  act ;  and  though  for  every  voluntary 
i ct  lie  must  abide  the  penalties  of  unforeseen  and  unintended  consc¬ 
iences,  yet  he  is  not  to  answer  for  a  misfortune  not  occasioned  by 
ny  aetofhis.  Bow  let  us  see  (the  cases  being  disposed  of)  whe¬ 
ther  1  am  not  based  upon  a  still  more  solid  principle  than  book  au- 
hority.  Does  not  justice  require  that  the  act  causing  the  death 
hould  be  voluntary  ?  For  God  forbid  that  he  who  had  no  criminal 
ntention  should  suffer  for  a  crime.  If  the  words  found  in  the  in- 
liclment,  “  in  the  fury  of  his  mind,”  are  meant  to  distinguish  the 
ct  from  a  mere  casualty,  surely  the  construction  should  be  at  least 
hat  the  act  should  be  voluntary. 

The  doctrine  1  am  contending  for  is  the  law  of  England,  and  de¬ 
uced  from  English  authorities  ;  but  it  is  infinitely  more  important 
d  insist  on  it  here,  than  it  could  be  in  that  country,  for  there  the 
uriishment  of  manslaughter  is  discretionary  with  the  court  ;  but 
ere  it  must  be  at  least  three  years  imprisonment  in  the  state  pri¬ 
on.  If  I  were  pleading  for  my  client  at  an  English  bar,  I  should 
robably  not  deem  it  material  to  his  interests,  that  1  should  dwell 
pon  the  position  1  have  just  advanced  ;  because  from  the  gradual 
Iteration  of  times  and  opinions,  which  would  protect  him  from  a 
irfeiture  of  goods,  it  would  be  little  worth  the  pains  of  any  English 
iwyer,  having  once  established  that  the  casualty  was  not  imputable 
>  him,  to  cite  cases  or  argue  very  strenuously  for  an  acquittal.  His 
lient  would,  upon  conviction,  be  fined  perhaps  one  shilling,  con¬ 
ned  one  day,  and  then  discharged.  For  what  reason  I  do  not  know, 
ut  the  fact  in  this  state  is,  that  all  discretion  in  the  punishment 
taken  from  our  courts  of  justice ;  and  myr  client  must,  if  con- 
icted,  inevitably  be  sentenced  to  a  punishment  more  bitter  than 
eath  to  a  man  of  lofty  feelings  and  honourable  character,  nurtured 
ad  bred  with  sentiments  worthy  of  his  station  in  life. 

When  it  appears  from  certain  acts  of  the  legislature,  that  every 
lan  found  guilty  of  manslaughter  should  be  sentenced  to  the  state 
Fson  for  tli ree  years,  should  it  not  also  be  inferred,  that  the.  legis- 
aure  meant  nothing  inconsistent  with  reason  and  justice,  and  that 
lose  were  not  to  go  for  three  years  to  the  state  prison,  whose  of- 
rnce  was  not  deserving  of  such  a  punishment.  If  it  made  the  law, 
gave  the  construction,  and  must  have  meant  that  no  man  should 
8  so  ivu-  ir  h  'd  for  an  act  free  from  criminal  intent.  Even  in  England, 
i  those  cases  where  the  degree  of  the  offence  is  regulated  by  the 
andard  of  property,  you  will  find  the  most  austere  judges  instruot- 
'•g  the  j  nr-,  that  they  are  authorized  to  find  the  property  of  less  value 
i:;n  even  living  being  knows  it  is,  and  they  thus  rescue  the  victim 
om  a  punishment  which  their  humanity  tells  them  is  beyond  his 
hit.  Am  1  s',  rong  then  in  s  u  ing  that  your  oaths  should  bind  you  to 
|e  very  strictest  invesiig  •  <  -a  .ff  .the  evidence  according  to  my 
inci pies  ;  and  your  consciences  should  not  yield  to  any  tiling  tha& 


128 


does  not  bring  demonstration  home  ;  and  that  therefore  you  mil 
stop  and  see  whether  the  testimony  compels  you  to  believe  that  the 
dagger  was  not  on  the  ground  at  the  time  of  the  fatal  mishap  ;  and 
that  the  prisoner  did  more  than  hold  it  in  his  hand,  without  the 
slightest  intention  of  doing  an  act  that  could  contribute  to  the  death  1 
But  if  you  should  go  farther  and  believe  with  me,  that  in  truth  the 
weapon,  at  the  time  of  the  accident,  was  lying  on  the  ground,  and  i 
that  in  the  course  of  the  conflict  Mr.  Stoughton  tripped  or  fell,  ant  * 
in  so  doing  received  the  mortal  wound,  how  much  more  conclusive 
are  my  arguments ! 

These  considerations,  if  you  feel  them  with  the  force  that  1  do 
will  supersede  the  necessity  of  all  further  discussion,  and  put  at 
end  at  once  to  the  prosecution,  whether  Mr.  Goodwin’s  conduct  it 
the  conflict  was  unlawful  or  not :  for  if  the  essential  thing  is  wanting 
if  it  was  not  a  voluntary  act ,  then  the  unlawfulness  alone  can  nevet 
make  it  amount  to  manslaughter. 

The  definition  of  manslaughter  cited  by  the  opposite  cottnse 
from  Hawkins,  b.  1,  c.  20,  §  1,  is,  in  a  technical  sense,  correct 
but  I  shall  render  it  more  exact  to  the  minds  of  men  notaccuslomei 
to  legal  discussions,  by  recurring  to  Lord  Coke  himself  for  the  de 
finition.  (3  Inst.  56.)  He  says :  “  There  is  a  homicide  which  is  nei 
ther  aforethought  nor  voluntary ,  as  if  a  man  kill  another  by  mis 
adventure  or  accident.”  d  here  let  me,  in  passing,  remark,  tha 
the  very  division  of  his  subject  adopted  by  Lord  Coke,  “  homicide 
which  is  neither  aforethought  nor  voluntary ,”  (i.  e.  which  is  neithe 
murder  nor  manslaughter )  very  strongly  justifies  the  insertion  o 
the  word  wilful,  by  Mr.  Justice  Parker ,  in  his  definition  of  the  lat 
ter  offence,  and  exceedingly  fortifies  the  position  on  that  snbjec 
which  I  have  already  discussed.  But  to  return  to  my  argument 
Lord  Coke  in  the  same  passage  proceeds  :  “  And  homicide  by  mis 
adventure  is,  when  a  man  doth  an  act  that  is  not  unlawful,  which 
without  any  evil  intent,  tendeth  to  a  nun’s  death.”  Now  Serjean 
Hawkins  has  substituted  for  these  words,  “  without  arty  evil  intent, 
the  words  “  without  any  intent  to  hurt.'''’  And  he  has,  with  littl 
necessity,  substituted  the  words  “lawful  act,”  for  '•'■act  not  union 
ful."  They  surelv  mean  the  same  tiling,  though  the  latter  expre.1 
siori  may  convey  the  idea  more  accurately  to  your  mind.  Then  t  i 
this  definition  of  Lord  Coke  I  will  adhere,  and  to  avoid  the  confu  i 
sion  that  arises  out  of  these  words,  without  any  intent  to  hurt,  1  sha  i 
say  with  Lord  Coke,  without  any  intent  tending  to  the  man’s  dead.  | 
And  then  if  the  intention  be  not  to  do  the  art.  and  if  the  act  be  notour 
lawful, death  arising  from  the  twro  combined  togethercan  aloneamom 
to  manslaughter.  The  counsel  on  the  other  side  mav,  perhaps,  insi- 
that  to  either  of  these  definitions  should  he  added  this  phrase.  vi> 
without  due  caution.  This  has  been  often  said,  and  I  do  not  think  it  nt 
cess  ary  for  us  to  contend  against  it  ;  hut  in  admitting  it.  let  me  appri- 
you  how  vou  should  receive  it,  by  reading  a  passage  from  a  most  ah! 
criminal  judge,  ( Foster ,  263.)  who  says,  “  I  cannot  help  saving  tin 
the  rule  of  law  I  have  been  considering  in  this  place,  touching  th| 
consequence  of  taking  or  not  taking  due  precaution,  doth  not  see: 


12$ 


iently  tempered  with  mercy.  Manslaughter  was  formerly  a  capi- 
al  offence,  as  I  shall  hereafter  show.  And  even  the  forfeiture  of 
oods  and  chattels  upon  the  foot  of  the  present  law,  is  an  heavy 
troke  upon  a  man,  guilty,  it  is  true,  of  an  heedless  incautious  con- 
uct,  but  in  other  respects  perfectly  innocent.  And  where  the  rigour 
f  law  bordereth  upon  injustice,  mercy  should,  if  possible,  inter- 
ose  in  the  administration.  It  is  not  the  part  of  judges  to  be  per- 
etually  hunting  after  forfeitures,  where  the  heart  is  free  from  guilt. 
'he)'  are  ministers  appointed  by  the  crown  for  the  ends  of  public 
istice  ;  and  should  have  written  on  their  hearts,  the  solemn  en- 
rgement  his  majesty  is  under,  to  cause  law  and  justice  in  mercy 
•  be  executed  in  all  his  judgments.” 

Now,  gentlemen,  if  the  mere  forfeiture  of  goods  calls  for  this 
erciful  administration  of  justice  ;  if  this  respectable  judge  thus 
>eaks  of  tempering  the  rigour  of  the  law,  think  of  that  terrible 
mishment  that  must  follow  upon  your  verdict  of  conviction.  Tern- 
sr  your  verdict  also  by  that  same  mercy.  You  are  not  hunting 
iter  forfeitures  of  goods  ;  but  you  are  called  upon  to  utter  a  fear- 
1  sentence,  far  more  than  forfeiture  of  goods  ;  far  worse  to  an 
mourable  mind  than  death  itself.  You  are  not  kings,  nor  bound 
l  the  oaths  of  kings  ;  but  you  are  bound  by  the  precepts  of  the 
'od  you  worship,  ks  much  as  kings  can  be,  to  administer  justice  in 
ercy.  That  oath  of  the  king,  is  only  to  fix  in  his  mind  the  admo- 
tion  of  the  King  of  kings,  and  which  he  gives  alike  to  kings  and 
ibjects,  who  are  equal  in  his  eyes.  It  speaks  only  that  command 
i  God  to  man  which  is  embodied  in  lhs  oath,  as  a  divine  instruc¬ 
ts  to  him  and  his  people. 

What  is  the  nature  then  of  this  “due  caution  ?”  Where  the 
lvful  act  is  deliberately  begun  and  carried  on,  there  may  be  time 
T  caution;  and  if  it  be  possible  to  justify,  before  a  jury  of  this 
dun'.ry,  a  judgment  like  that  against  Sir  John  Chichester,  it  could 
1  only  upon  this  ground,  that  the  killing  was  there  in  a  dangerous 
kid  of  sport,  which  the  parties  had  deliberately  entered  into  ;  and 
tin.  perhaps,  greater  caution  might  be  exacted.  But  here,  the 
c  cumstances  were  such  that  the  mind  of  the  defendant  could  not 
l  composed,  nor  could  he  be  self-possessed  ;  the  rule  as  to  him 
mst  therefore  be  taken  with  great  latitude.  Let  us  illustrate  the 
dtinction  by  supposing  a  case.  If  a  number'  of  persons  go  on  a 
biting  party,  it  is  a  lawful  act  in  every  person  ;  if  the  vessel 
s  iuld  be  overset,  each  would  endeavour  to  save  himself,  which  is 
ao  lawful.  All  might  be  saved,  if  all  were  cautious  and  delibe- 
re;  they  cling  to  the  keel,  but  one  in  his  flurry  shoves  another 
o  who  is  drowned — would  you  sentence  him  to  the  state  prison  for 
tlee  years,  and  give  him  as  a  reason,  that  he  had  not  used  due 
cation  in  his  exertions  for  himself?  You  could  not  do  so  ;  every 
n  rciful  consideration  would  warn  your  conscience^ ,  that  in  such 
si  den  emergencies  no  man  is  competent  to  the  exercise  of  “due 
cition,”  nor  master  of  the  ordinary  powers  of  his  mind.  The 
■delusion  from  this  illustration  is,  that  where  the  act  takes  place 
u  ler  circumstances  which  naturally  destroy  all  self-command,  the 

T7 


130 


rule  couching  observance  of  clue -caution  will  receive  a  very  larg 
and  liberal  construction.  But  here  1  may  passingly  observe,  tb; 
a  caution  greater  than  perhaps  would  be  expected  on  such  occasion! 
was  manifested  by  this  unfortunate  prisoner,  when  he  took  th 
blade  in  his  hand,  and  struck  with  the  handle  of  the  dagger  in  th 
manner  described  by  Mr.  Cambreling. 

I  have  now,  gentlemen,  stated'to  you  the  general  principles  (  . 
the  law  of  homicide  on  which  we  rely  ;  and  before  I  examine  th 
facts  entering  into  the  merits  of  this  case,  let  me  advert  to  a  piec 
of  testimony  which,  under  that  law  of  homicide,  1  think  should  nt 
have  been  introduced  at  all.  Major  Smith  was  examined  to  prov 
that  the  prisoner  procured  from  him  the  cane  unfortunately  coi 
tabling  the  dagger  which  gave  the  wound,  but  the  evening  befoi 
the  affray.  If  that  fact  could  afford  any  inference,  it  could  only  l 
to  affix  a  charge  on  my  client,  from  which  the  grand  jury  have  al 
solved  him,  and  which  you  are  not  to  try — from  which  he  is  n 
called  upon  to  defend  himself,  and  which  he  may  well  be  unpn 
pared  with  evidence  to  explain.  But,  gentlemen,  that  inference 
most  strained  and  uncharitable,  and  such  as  should  never  be  applii 
to  human  actions.  Two  gentlemen,  friends  from  childhood,  met  ui 
der  circumstances  of  conviviality  well  calculated  to  exalt  their  m 
tual  attachment,  and  expected  to  separate  again  in  a  day  or  ttv 
perhaps  for  ever.  Th.e  stick  happened  to  catch  Mr.  Goodwill 
eyes,  as  Major  Smith  held  it  on  a  chair,  in  a  gay  and  unimporta 
conversation.  Both  had  sticks  not  unlike  each  other,  and  my  die 
proposed  to  exchange  them  as  mutual  keepsakes.  Major  Smi 
says  it  was  done  after  a  few  words  ;  that  it  rvas  understood  betwe- 
them,  the  exchange  was  only  made  as  a  memento  ;  and  he  did  n 
know,  that  when  Mr.  Goodwin  proposed  the  exchange,  he  was  awa 
there  was  a  sword  in  the  witness’s  cane.  If  this  is  to  be  urged  a* 
proof  of  deliberate  and  premeditated  malice,  what  man  can  gus 
the  most  inconsiderate  and  thoughtless  actions  of  his  life,  from  t 
foulest  and  most  terrible  construction  ?  It  would  be  unworthy  o 
jury  to  bestow  on  it  a  moment’s  deliberation  ;  and  particularly  as 
has  no  relation  to  the  issue  they  are  sworn  to  try. 

In  considering  ihe  facts  really  connected  with  that  issue,  t 
first  question  that  presents  itself  is,  was  the  act  of  Mr.  Goodwin 
his  conflict  with  Mr.  Stoughton  law-ful  ?  or,  to  continue  the  use  off  j 
expression  I  have  already  adopted,  can  it  come  within  Lord  Cok i  I 
definition  as  “  no  unlawful  act  ?”  To  decide  this,  consider  it  wi  | 
out  adverting  to  that  fatality  which  ought  to  have  no  influence  i  | 
your  minds  in  judging  of  the  act  itself,  and  which  could  only  m 
lead  you  in  determining  on  its  legality  or  illegality  in  the  abstra 
Suppose  the  prisoner  was  defending  himself  on  an  indictment  fo; 
mere  assault  and  battery,  or  in  a  civil  action  by  the  plea  of  son  •• 
sault  demesne  :  that  is,  that  he  was  first  assaulted  by  his  adversa 
This  is  the  fair  way  of  judging,  as  there  is  no  law  peculiarly  app 
cable  to  manslaughter  iu  this  respect.  The  legality  of  Mr.  Goo 
win’s  act  is  to  be  judged  of  simply  upon  this  ground  ;  whether,  i-| 
der  the  circumstances  of  the  case,  he  could  be  found  guilty  of  h; 


131 


mg  committed  an  assault  and  battery.  The  opposite  counsel  endea¬ 
voured  to  elude  this  test  by  citing  authorities  which  are  totally  in¬ 
applicable  to  manslaughter.  i  hey  refer  to  East’s  Cr.  Law.  vol.  1, 
p.  239.  where,  speaking  of  homicide  from  transport  of  passion  or 
heat  of  blood,  the  w  riter  says,  “  In  no  case,  however,  will  the  plea 
of  provocation  avail  the  party,  if  it  were  sought  for  and  induced  by 
his  own  act,  in  order  to  afford  him  a  pretence  for  wreaking  his 
malice.  As  where  A  and  B  having  fallen  out,  A  says' he  will  not 
strike,  but  will  give  B  a  pot  of  ale  to  touch  him  ;  on  which  B  strikes, 
and  A  kills  him  :  this  is  murder.”  This  authority  is  applicable 
exclusively  to  cases  of  murder,  and  has  no  reference  to  tiie  law  of 
manslaughter.  It  is  grounded  upon  the  crafty  words  used  to  evade 
the  law,  “I  will  give  you  a  pot  of. ale  if  you  will  strike  me,” 
that  show  the  previous  and  premeditated  malice  which  is  an  in¬ 
gredient  of  murder.  But  it  has  no  application  to  a  case  of  man  ¬ 
slaughter,  where  malice  is  riot  at  all  the  question,  and  where  the  act 
stands  simple  and  alone.  So  in  1  Hale,  457  :  “  A  and  B  are  at  some 
distance  :  A  bids  B  take  a  pin  out  of  the  sleeve  of  A,  intending 
thereby  to  take  an  occasion  to  strike  or  wound  B,  which  B  doth  ac¬ 
cordingly,  and  then  A  strikes  B,  whereof  he  died  :  this  was  ruled 
murder.  First,  because  it  was  no  provocation  when  he  did  it  by  the 
consent  of  A.  Second,  because  it  appeared  to  be  a  malicious  and 
deliberate  artifice,  thereby  to  take  occasion  to  kill  B.”  I  there¬ 
fore,  gentlemen,  set  aside  these  and  any  other  authorities  concern¬ 
ing  previous  provocation,  as  relating  to  murder  only,  and  not  to 
manslaughter;  and  then  l  contend,  on  the  general  principles  of  the 
law  of  assault  and  battery',  that  the  provocation  alleged  to  have 
been  previously  given  by  Mr.  Goodwin  to  Mr.  Stoughton,  cannot 
make  his  subsequent  conflict  unlawful.  There  is  no  doubt  but  that 
the  deceased  struck  the  first  blow  ;  for  though  Mr.  Clark  did  not 
see  it,  Weed  and  Cambreling  did  ;  and  the  district  attorney,  with 
that  candour  which  has  marked  his  proceedings  throughout  this 
cause,  admitted  the  fact.  It  is  enough  for  me  then  to  say,  without 
coming  to  the  express  definition  of  a  “  lawful  act,”  under  the  au? 
thority  of  Lord  Coke ,  that  the  prisoner’s  conduct  was  not  unlawful. 

Our  adversaries,  however,  dispute  this  position,  and  contend, 
that,  in  the  eye  of  the  law,  Mr.  Goodwin  committed  the  first  assault 
by  the  pointing  of  his  cane  towards  Mr.  Stoughton  ;  and  for  this 
they  cite  Hawk.  b.  1.  c.  G2,  §  1.  “It  seems  that  an  assault  is  an  at¬ 
tempt  or  offer  with  force  and  violence,  to  do  a  corporal  hurt  to 
Another  ;  as  by  striking  at  him  with,  or  without  a  weapon,  or  pre¬ 
senting  a  gun  at  him,  at  such  a  distance  to  which  the  gun  will 
carry  ;  or  pointing  a  pitchfork  at  him,  standing  within!  the  reach 
of  it,  or  by  holding  up  one’s  fist  at  him,  or  by  other  such  like  act 
done  in  an  angry  threatening  manner.”  But,  gentlemen,  the  doc¬ 
trine  there  laid  down  is  totally  inapplicable  to  this  case.  The  acts 
there  specified  were  held  to  be  assaults,  because  they  were  attacks 
upon  the  safety  of  another  ;  they  were  intended  for  the  purpose  of 
committing  personal  violence,  and  begun  and  proceeding  towards 
personal  injury.  But  here,  the  pointing  oi  the  cane  was  no 
more  an  assault  than  the  pointing  of  the  finger.  It  was  an  ip- 


dicati'on  of  the  person,  and  nothing  more.  Let  me  remind  you  also, 
gentlemen,  that  in  such  a  solemn  proceeding  as  this,  the  defendant 
js  entitled  to  the  benefit  of  the  legal  definition  of  the  offence  charg¬ 
ed  upon  him  in  all  its  parts  and  strictness.  If  the  provocation  ap¬ 
pears:  to  you,  as  1  fear  it  must,  to  have  been  wrong,  fully  as  I  admit 
it,  and  deeply  as  it  is  regretted  by  my  client  more  than  by  any  other 
person,  who  with  a  contrite  heart  says  through  me,  would  to  God  it 
never  had  been  given,  nor  the  terrible  consequences  followed  from 
it  ;  yet  neither  that  contrite  admission  of  the  party,  nor  the  lamenta¬ 
ble  consequences  of  the  act,  are  to  deprive  him  of  the  benefit  of  the 
law  in  every  shape.  And  the  law  says,  that  the  pointing,  not  being 
with  a  view  to  a  battery  of  the  person  nor  to  any  personal  violence, 
was  no  assault  ;  for  that  the  intent  of  violence  is  a  necessary  ingre¬ 
dient  to  constitute  an  assault. 

But  that  transaction,  whatever  may  have  been  its  character,  was 
ended.  Mr.  Goodwin  had  gone  on  his  way,  as  also  had  Mr.  Stough¬ 
ton  ;  and  with  respect  to  the  consequences  of  that  act,  all  w  as  past 
and  over.  The  returning  and  following  of  Mr.  Goodwin  by  Stough¬ 
ton,  was  a  new  and  distinct  act,  which  should  be  entirely  separated 
from  the  former  in  your  consideration.  If  Mr.  Goodwin  had  been 
the  person  slain,  and  Mr.  Stoughton  the  person  upon  trial,  he  never 
.could  have  availed  himself  of  the  defence,  that  his  striking  Mr. 
Goodwin  was  lawful ;  and  if  he  could  not  so  avail  himself,  though 
the  calamitous  accident  has  changed  the  situation  of  the  parties,  the 
act  of  Stoughton  must  still  continue  unlawful  ;  it  therefore  follows 
of  necessity,  that  the  resistance  to  it,  and  the  conflict  ensuing  upon 
it,  was  not  util  (ireful.”  And,  in  truth,  that  case,  where  one  said  to 
the  other  as  an  excuse,  “  take  this  pin  out  of  my  sleeve  would 
apply  to  Mr.  Stoughton  with  all  its  severity,  if  he  were  upon  trial, 
and  not  to  Mr.  Goodwin.  I  should  be  sorry  to  see  such  severity  of 
construction  administered  at  all  ;  but,  if  it  were,  it  could  be  only  in 
respect  to  Mr.  Stoughton. 

It  has  been  intimated  that  Mr.  Goodwin's  continuing  the  conflict 
after  the  deceased  began  to  retreat,  was  unlawful,  and  gave  that 
character  to  the  subsequent  events.  1  cannot,  however,  conceive 
that  your  verdict  will  ever  sanction  this  doctrine.  In  East's  Croren 
Laze,  v.  1.  p.  239,  the  author,  after  observing  that  the  punishment 
inflicted  on  any  sort  of  provocation,  must  not  greatly  exceed  the  of¬ 
fence  received,  adds:  “This  has  been  urged  with  caution;  be¬ 
cause,  in  cases  where  the  mercj'  of  the  law  interposes  in  pity  to 
human  frailty,  it  will  not  try  the  culprit  b}'  the  rigid  rule  of  justice, 
and  examine  with  the  most  scrupulous  nicety,  whether  he  cut  off 
the  exact  pound  of  flesh.”  What  was  the  duration  of  this  affray, 
which,  it  has  been  intimated,  Mr.  Goodwin  continued  too  long? 
perhaps  not  half  a  minute  at  the  utmost.  Two  or  three  blows  pass¬ 
ed  on  each  side  in  an  uninterrupted  scuffle  ;  Mr.  Stoughton  re¬ 
treated,  not  because  he  wished  to  give  up  the  contest,  hut  because 
he  found  his  adversary  somewhat  stronger  than  himself ;  and,  per¬ 
haps,  in  order  to  regain  a  vantage  ground.  Is  such  retreating,  ac¬ 
companied  with  persevering  assaults  and  blows,  sufficient  to  pre- 


133 


vent  a  man  Irom  using  violence  to  repel  the  continued  violence  of 
an  aggressor,  and  for  the  purpose  of  self-defence  ?  Where  was  the 
disposition  of  Mr.  Stoughton  to  discontinue  the  conflict  ?  When  did 
he  cease  to  attack  the  prisoner,  or  renounce  the  original  purpose 
with  which  he  commenced  the  assault,  while  he  had  the  capacity  to 
carry  it  into  effect?  Mr,  Clark  says,  though  perhaps  somewhat 
mistakenly,  that  after  the  deceased  rose  up,  he  actually  struck  the 
prisoner.  Mr.  Phelps  and  Mr.  Cambreleng  say,  he  appeared  deter¬ 
mined  to  renew  the  attack  ;  and  Mr.  Weir  says,  he  made  an  effort  to 
do  so.  This  evidence  is,  1  trust,  sufficient  to  prevent  the  inference 
that  Mr.  Stoughton  had  given  up  the  coniiict,  or  that  the  prisoner 
was  bound  to  suppose  he  intended  doing  so. 

Mr.  Goodwin  is  further  charged  with  striking  Mr.  Stoughton 
when  he  was  down.  Permit  me  to  say,  that  that  fact  has  no  rela¬ 
tion  to  what  you  are  to  try,  unless  so  far  as  it  affords  an  inference 
favourable  to  my  client.  Favourable  indeed  it  is,  because,  as  1  shall 
hereafter  show,  it  proves  how  both  his  hands  were  employed  at 
the  time  he  is  said  to  have  stabbed  his  adversary  ;  and  also,  be¬ 
cause  it  shows  an  unconsciousness  of  what  had  taken  place.  But 
remember,  gentlemen  of  the  jury,  you  have  no  evidence  before 
you  :  and,  1  trust  in  God,  the  wide  range  of  tnis  earth  could  not 
produce  the  evidence,  that  Mr.  Goodwin  was  that  abandoned 
wretch  who  could  have  continued  beating  a  man  in  the  face,  to 
whom  he  had  already  given  a  mortal  wound.  Would  to  God  it  had 
not — that  no  part  of  this  tragedy  had  taken  place  ;  but  it  must 
serve  at  least  to  show  that  he  never  could  be  conscious  of  having 
stabbed  his  antagonist  before  that  moment  ;  and  then,  or  after  that, 
he  certainly  could  not  do  it,  since  whilst  his  hands  were  both  em¬ 
ployed  about  his  adversary’s  face,  he  could  not  then  plant  a  dag¬ 
ger  in  his  heart. 

This  brings  me  to  the  notice  of  a  o,uestion  asked  of  a  witness,  as 
if  to  make  it  .testimony  in  the  cause,  perhaps  without  intention.  But 
it  was  asked,  “  is  not  Mr.  Goodwin  a  military  man  .?”  For  what  was 
that  asked  ?  Was  it  to  exhibit  him  to  you,  gentlemen  of  the  jury,  as 
a  skilful  assassin  ?  Is  that  an  attribute  belonging  to  your  army  ?  Was 
it  in  that  quality  your  soldiers  marched  against  your  enemies,  and 
fought  the  glorious  battles  of  their  country  ?  Is  that  sarcasm  appli¬ 
cable  to  your  forces  by  sea  or  land?  Does  it  come  properly  from 
one  who  owes,  perhaps  his  existence,  certainly  his  safety,  and  his 
present  tranquil  enjoyments,  to  the  fatigues,  the  privations,  the 
sufferings,  the  virtues  and  heroism  of  that  army  ?  If  my  client  was 
a  military  man,  was  it  in  that  school  of  valour  and  honour  that  he 
could  acquire  the  dipositions  of  an  assassin  ?  Did  he  learn  to  be  so 
in  the  battle  of  New-Orleans,  in  that  conflict  so  glorious  to  our  war¬ 
riors,  and  fatal  to  their  foes  ?  Did  he  learn  it  fighting  any  where 
in  the  defence  of  his  country,  as  our  soldiers  always  did,  openly 
and  face  to  face  with  their  enemies  ?  Was  it  in  any  of  those  exer¬ 
tions  of  body  and  of  spirit,  by  which  a  foreign  foe  was  gallantly  com¬ 
batted,  and  nobly  driven  from  our  shores  ?  What  could  he  have 
learned  in  that  school,  inconsistent  with  the  character  of  a  gentle- 


134 


man,  and  the  honour  of  a  soldier  ?  He  certainly  would  have  learned 
there  to  meet  his  enemy  in  the  most  deadly  combat,  and  face  to 
face,  whenever  the  necessities  of  his  country  and  the  duties  of  his 
calling  should  require  ;  but  if  he  is  a  military  man,  there  is  a  noble¬ 
ness  in  his  occupation,  which,  in  itself,  should  check  the  surmise, 
and  silence  the  whisper  that  he  could  be  an  assassin.  It  may,  in¬ 
deed,  have  given  him  too  exalted  notions  of  what  are  called  the 
laws  of  honour,  and  may  have  led  to  his  using  those  words  of  pro¬ 
vocation  and  those  slaps  of  insult,  which  both  he  and  1  deplore  ; 
but  most  assuredly,  it  never  taught  him  to  use  a  sword  or  dagger  in 
any  secret,  base,  or  hidden  manner,  to  work  the  death  of  an  unarm¬ 
ed  adversary. 

Let  us  now,  gentlemen,  examine  into  the  circumstances  of  those 
blows.  I  have  said,  they  were  only  intended  to  affront  or  degrade, 
and  not  to  inflict  any  injury  by  personal  violence.  I  need  not  give  a 
stronger  proof  than  the  bare  fact,  that  Mr.  Stoughton  was  lying  on  the 
ground  when  he  received  them,  and  not  in  the  attitude  ofdefence,  and 
yet  they  did  not  leave  a  mark  or  bruise.  If  the  prisoner  struck  with 
force,  when  no  blow  he  struck  was  returned  or  parried,  the  marks 
would  have  testified  to  the  atrocity  of  the  act.  Whatever  blows  then 
were  given,  when  Mr.  Stoughton  was  on  the  ground,  as  they  left  no 
trace,  so  they  were  intended  to  leave  none.  But  it  is  alleged,  these 
blows  were  given  with  a  cane,  from  which  a  dastardly  intention  of 
personal  injury  is  inferred.  On  this  subject  there  is  a  direct  contra¬ 
diction  of  the  witnesses.  'J  hose  who  testify  to  that  fact,  and  those 
who  disprove  it,  however  honest  they  may  be,  cannot  both  be  cor¬ 
rect,  and  you  must,  therefore,  decide  between  them.  In  doing  so,  I 
think  I  can  give  you  one  unerring  rule  ;  wherever  there  is  a  con¬ 
trariety  of  evidence,  that  statement  cannot  be  believed,  which  leads 
to  an  impossible  or  an  absurd  conclusion.  And  I  hope  to  satisfy  you, 
that  believing  Mr.  Goodwin  struck  Mr,  Stoughton  when  on  the 
ground,  about  the  head,  with  the  handle  of  the  dagger,  would  ne¬ 
cessarily  lead  to  the  absurd  conclusion  that  Mr.  Stoughton  was  not 
stabbed  at  all,  and  did  not  die  of  any  wound  ;  w  hile  believing  that 
the  blowrs  were  given  only  with  the  hand,  leads  to  aji  easy  and  na¬ 
tural  explanation  of  his  calamitous  death.  So  far,  how'ever,  as  re¬ 
lates  to  the  acquittal  of  my  client  on  this  indictment,  it  seems  to  me, 
that  in  whatever  shape  this  fact  is  put  before  you,  it  equally  leads 
to  the  conclusion  that  Mr.  Stoughton’s  death  was  accidental,  and 
not  effected  by  the  voluntary  act  of  Mr.  Goodwin.  If  these  blow's 
were  given  bj  the  hand  only,  either  open  or  clenched,  they  show 
that  the  dagger  was  then  out  of  his  hands,  and  give  great  probabili¬ 
ty,  if  not  certainty,  to  the  conclusion  which  I  am  sure  you  are  in¬ 
clined  to  draw,  that  the  death  was  occasioned  by  that  dagger,  w'hen 
it  w’as  out  of  the  prisoner’s  hands.  But,  suppose  those  blows  to 
have  been  given  with  the  handle  of  the  dagger  ;  the  witnesses  who 
attempt  to  testify  to  that  fact,  agree  that  when  they  were  given  in 
the  face,  the  prisoner  held  the  dagger  (as  he  had  done  during  the 
conflict,  when  standing  up)  by  the  blade,  and  struck  with  the  handle. 
When  then  was  the  stab  of  the  depth  and  direction  described  to 


135 


you,  given  with  the  point  ?  That  he  had  the  blade  in  his  hand,  botb 
before  and  alter  the  fall,  all  the  witnesses  agree  who  testify  to  that 
fact,  except  Vervalen,  who  probably  saw  nothing  ;  for  he  deposed 
to  things  that  could  not  possibly  have  happened,  and  in  contradiction 
to  every  other  witness.  Indeed,  1  observed  a  smile  on  every  coun¬ 
tenance,  and  yours  amongst  the  rest,  when  he  related  his  extraor¬ 
dinary  vision.  But,  putting  him  aside,  and  reasoning  on  the  testi¬ 
mony  of  the  witnesses  who  say  my  client  struck  w'ith  the  handle  of 
the  dagger  w'hen  Stoughton  was  on  the  ground  ;  let  me  ask  when 
was  that  wound  given  which  penetrated  through  the  ninth  and  tenth 
rib,  forward  and  upward,  through  the  heart  to  the  breastbone  ? 
If  it  were  possible  to  conceive,  that  fact  to  be  established,  it  would 
put  the  acquittal  of  my  client  past  all  doubt,  for  it  would  place  it 
jpon  the  very  extraordinary  but  very  solid  ground  of  certainty, 
hat  Mr.  Stoughton  was  not  stabbed  with  that  dagger. 

Now,  gentlemen,  see  how  the  evidence  stands.  The  opposite 
;ounsel  must  either  renounce  that  part  of  their  own  testimony,  on 
vhich  they  seem  mainly  to  rely,  or  abandon  the  conviction  of  my 
client  ;  for  they  are  met  by  an  insuperable  difficulty  arising  from 
;hat  very  testimony.  The  prisoner  held  the  dagger  by  the  blade, 
vhile  standing  face  to  face  engaged  in  the  conflict,  and  using  it  upon 
he  head  of  the  deceased.  Beyond  a  doubt,  it  was  not  then  the 
vound  was  given.  1  anticipate  indeed  that  you  will  be  urged  to 
believe  the  deceased  fell,  because  he  had  been  previously 
itabbed  to  the  heart.  This  supposition,  however,  is  not  only  en- 
irely  gratuitous,  sufficient  causes  being  otherwise  assigned  for  the 
all,  but  it  is  repelled  by  the  constant  employment  of  the  prisoner’s 
lands  in  fighting  about  the  bead  of  the  deceased  ;  by  the  impossi- 
lility  of  his  inflicting  the  wound  described,  situated  as  the  parties 
ire  proved  to  have  been  in  respect  to  one  another ;  by  the  position 
n  which  the  prisoner  held  the  dagger  by  about  the  middle  of  the 
ilade  ;  by  the  great  notoriety  and  conspicuousness  of  movement 
vhich  would  have  been  necessary  for  changing  the  position  of  the 
lagger  in  the  hand,  and  of  the  arm  itself,  to  give  any  thing  ap- 
•roaching  to  such  a  wound  ;  and  by  the  acknowledgment  of  all  the 
vitnesses  that  no  one  saw  any  such  movement  made.  Besides,  if 
be  deceased  had  fallen,  because  his  limbs  and.  strength  failed  him 
i  consequence  of  the  stab,  the  fact  would  have  been  immediately 
bvious  to  the  spectators.  If  the  wound  had  produced  its  effect 
pon  his  system,  and  his  muscular  strength  had  been  so  entirely 
rostrated,  he  would  not  have  risen  and  stood  as  if  about  to  renew 
le  combat  till  another  syncope  or  fainting  seized  him.  When  the 
me  came  that  the  consequences  of  the  wound  on  his  frame  became 
bvious  and  caused  the  failure  of  his  strength,  he  fainted,  and  never 
pened  his  eyes  but  for  a  moment  with  a  glare  of  fury,  and  then 
,  iosed  them  for  ever.  Returning  then  to  my  argument  on  the  ccn- 
usions  to  be  drawn  from  the  contradictory  statements  of  the  wit- 
1,  asses,  1  repeat  my  assertion  ;  beyond  a  doubt  the  wound  was  not 
ven  when  both  parties  were  engaged,  face  to  fate,  in  the  conflict, 
afore  Mr.  Stoughton’s  fall  :  and  they  continued  in  that  attitude  un- 


136 


til  he  fell.  When  that  event  took  place,  Mr.  Goodwin  nearly  los 
his  balance,  and  almost  fell  with  him.  If  the  witnesses  are  to  h 
believed  who  assert  that  while  Mr.  Stoughton  lay  on  the  ground 
Mr.  Goodwin  was  using  the  dagger,  the  same  evidence  states  tlm 
he  held  it  in  the  same  position,  and  used  it  in  the  same  way  over  tin 
head  ot  the  deceased.  Most  assuredly  also  it  was  no.  then  the  woun 
was  given.  The  deceased  lay  upon  his  back,  rather  inclining  to  tli 
left  side.  Where  was  the  space  (even  if  the  prisoner’s  hands  had  no 
been  otherwise  employed)  to  permit  the  placing  of  that  dagger  unde 
the  deceased,  the  driving  of  it  into  that  part  of  his  body  that  most  par 
ticularly  rested  on  the  ground,  and  withdrawing  it  again  l  The  me 
tion  of  the  arm  requisite  for  such  an  operation,  must  have  been  ix 
tremely  conspicuous,  and  yet  nobody  saw  it — Mr.  Gambreleng  sail 
his  arm  and  yet  saw  no  thrust.  If  then  1  am  correct  that  the  woun 
could  not  have  been  given  while  the  parties  were  standing  eng  .gc 
in  conflict — nor  yet  while  the  deceased  was  lying  on  the  grount 
you  are  inevitably  brought  to  the  time — the  on hj  time  when  th 
wound  could  have  been  received  :  namely,  as  Mr.  btoughton  w, 
falling,  or  fell ;  and  then  it  could  not  have  been  inflicted  by  the  vc 
luntary  act  of  Mr.  Goodwin. 

The  prisoner,  though  lie  did  not  entirely  lose  his  balance,  y< 
still  was  falling  along  with  Mr.  btoughton.  Mow  let  any  man  s? ho¬ 
me  how  the  prisone:,  holding  the  dagger  by  about  the  middle  of  th 
blade,  always  in  front  of  the  deceased,  who  was  lulling  off  from  hii 
backwards,  and  he  himself  Staggering  or  falling-forwards,  could  Inn 
inflicted  a  wound  beginning  near  the  back,  splintering  ofl'  part  i 
one  of  the  lower  ribs,  and  penetrating  ten  inches  forwards  and  iq , 
wards  even  to  the  breastbone,  winch  it  injured  ;  and  that  uitlioi 
any  of  the  spectators  having  seen  the  necessary  change  of  tht  pi 
sition  of  the  dagger  in  the  prisoner's  hand,  or  of  his  arm,  to  infli< 
the  wound  !  Let  any  man,  even  standing  firmly,  place  himself 
that  position,  opposite  another,  and  try  with  a  weapon  of  that  lengil 
and  held  in  that  manner,  to  inflict  such  a  wound,  and  he  will  iuimi 
diately  perceive  it  is  impossible.  But  when  it  is  further  consideft 
that  both  were  falling,  and  of  course  that  the  necessary  physic  * 
force  and  firmness  of  position  were  wanting,  it  is,  to  say  the  leas  ^ 
incredible  that  the  prisoner  should  not  only  have  inflicted  such 
wound  at  that  moment :  but  also  have  withdrawn  the  instruine 
again,  (the  deceased  being  on  his  back  on  the  ground)  regr.isped 
by  the  blade  and  recommenced  his  blows  about  the  head  of  the  d 
ceased,  thus  twice  changing  the  position  of  the  dagger  in  his  Inn 
and  the  position  and  direction  of  his  right  arm  ;  and  all  this  unpe 
ceived  by  any  of  the  surrounding  witnesses. 

I  have  said  that  under  those  circumstances  the  necessary  for 
and  firmness  of  position  for  the  voluntary  inflicting  of  such  a  wou. 
were  wanting.  Evidence  has  been  produced  that  muscular  strene. 
would  be  adequate  to  the  giving  of  that  wound — but  it  is  idle f 
talk  about  the  sufficiency  of  muscular  strength  in  the  abstract.  • 
can  only  be  applicable  to  this  or  any  particular  case,  by  taking  in 
consideration  the  position  of  the  parties,  and  the  situation  oft; 


137 


■art,  the  strength  of  which  is  to  be  exerted.  In  this  case,  (if  the 
pound  be  supposed  to  have  been  given  by  the  dagger  in  the  prison- 
r’s  hand)  no  momentum  could  have  been  given  to  the  weapon,  by 
npurting  to  it  a  velocity  before  the  point  was  made  to  touch  the 
ody.  The  shortness  of  the  human  arm,  the  length  of  the  blade, 
nci  the  position  in  which  the  dagger  must  have  been  held  and  dri- 
en,  to  inflict,  by  a  person  standing  in  front  of  his  adversary,  a 
ound  beginning  near  the  hack,  between  the  ninth  and  tenth  ribs, 
htl  going  upwards  and  forwards  through  the  heart  to  the  breast- 
one,  show  that  if  it  could  have  been  given  at  all,  the  point  must 
ave  been  applied  to  the  back  of  the  deceased  without  any  ante- 
sdently  acquired  momentum  or  velocity,  and  forced  through  a  part 
f  one  of  the  ribs,  and  into  the  body  to  the  length  of  ten  inches,  by 
iere  muscular  exertion,  commencing  from  a  state  of  rest.  The 
en-  skilful  physician  who  examined  the  wound  and  dissected  the 
ody,  influenced  by  these  considerations,  testified,  that  under  all  the 
rcunjstances  of  the  case,  he  ’  thought  the  muscular  strength  of  a 
an  would  he  inadequate,  to  the  giving  of  such  a  wound,  and  that 
most  have  been  caused  by  the  fill,  which  alone  could  impart  the 
rce  and  velocity  necessary  for  overcoming  the  difficulties.  Other 
lysieinns,  having  no  respect  to  the  circumstances  of  the  case,  said 
ey  thought  the  strength  of  a  man  would  be  adequate  to  drive  the 
igg  t  in  so  far  ;  and  to  illustrate  their  opinion  you  must  have  ob- 
rved  them  drawing  back  their  arms,  and  then  thrusting  the  dagger 
rward  with  the  utmost  velocity  and  force.  I  was  stopped  in  my 
oss-examination  of  those  witnesses,  by  which  I  wished  to  fix  their 
inds  on  the  situation  of  the  parties,  and  the  impossibility  that  the 
eapon  could  have  been  driven  with  that  velocity  and  force  ;  and 
rhaps  I  was  rightly  stopped  ;  for  I  was  told  that  it  was  your  pro- 
nce  to  draw  these  conclusions.  I  ask  you  then  to  draw  them  now, 
d  I  entreat  you  to  consider  whether  it  can  he  supposed,  or  rather 
Ken  for  granted  against  evident  presumption,  against  mercy, 

•  ainst  the  character  and  reputation  of  the  prisoner,  that  he  ex- 
■  ted  a  force  to  which  a  very  competent  judge  thinks,  and  1  trust 
;  u  will  think,  the  muscular  strength  of  any  man  would  he,  under 
lose  circumstances,  unequal. 

I  therefore  sayr  and  insist,  gentlemen  of  the  jury,  that  whichever 
it  of  witnesses  you  give  credit  to,  you  must  arrive  at  the  conclu- 
f  n  that  my  client  must  be  acquitted.  If  his  hands  alone  were 
uployed  aboutthe  head  ofthe  deceased  when  he  was  on  the  ground, 
ty  dagger  was  then  out  of  the  prisoner’s  hands,  and  the  natural 
nclusion  is  that  the  wound  was  received  by  falling  on  it,  or  with 
i  on  the  ground.  If  you  can  believe  it  was  still  in  his  hands,  and 
Md  thus  by  the  blade  through  all  the  progress  of  the  affair,  Mr. 
Godwin  cannot  be  guilty  of  tiie  crime  charged  in  this  indictment, 
f  the  death  cannot  have  been  occasioned  by  a  stab  with  that  dag¬ 
s’.  Extraordinary  and  absurd  as  this  certainly  appears,  yet  it  is  a 
T:essary  conclusion,  that  the  whole  of  the  allegations  about  the 
r  rtul  wound  must  be  untrue,  if  this  part  ofthe  testimony  be  taken 
a  the  truth. 


18 


But  in  this  very  singular  case,  more  abundant  in  contradictioi 
amongst  honest  men  than  1  ever  knew  before,  where  witnesst  i 
speaking  of  the  same  thing  differ  so  entirely  one  from  the  othe 
on  what  are  you  to  rest  ?  1  might  rely  for  my  client  on  the  unce 
tainty  of  proof  on  behalf  of  the  prosecution.  1  might  tell  you  tli 
where  you  were  in  doubt  you  were  bound  to  acquit. 

There  is,  however,  a  surer  and  a  safer  guide  for  you  than  tl 
tongue  of  any  witness.  The  senses  of  men  may  deceive  tlier  { 
their  memories  betray  them,  their  feelings,  passions,  and  appr 
hensions  may  mislead  them.  But  if  there  be  any  unerring  fac  | 
not  to  be  altered  by  misapprehension  or  mistake,  adopt  that  f  , 
your  guide,  and  it  will  be  a  clue  to  lead  you  through  the  labyrint 
That  fact  exists,  and  though  one  rib  may  be  mistaken  for  anothe  i 
the  wound  itself,  its  situation,  depth,  direction  and  nature,  are  ce 
tain.  On  them  I  have  endeavoured  to  fix  your  attention,  and  if  y<|j 
keep  them  steadily  in  view,  they  will  give  you  as  much  certainty  1 
the  nature  of  this  case  can  possibly  admit. 

That  the  cane  was  used  in  the  conflict  there  can  be  no  doubt  i 
the  weight  of  evidence,  however,  is,  that  the  blow  after  which  il  i 
Stoughton  fell  was  given  with  the  fist.  Mr.  Clark  clearly  sa 
so  ;  Mr.  M‘Williams  speaks  as  decidedly  to  the  same  fact,  and  sav* 
that  w  hen  he  was  running  up,  before  the  knocking  down,  the  batt 
was  with  their  hands.  Mr.  Baker  also  says  the  same  thing.  The 
is  therefore  much  reason  to  doubt  whether  the  prisoner  had  tl 
dagger  in  his  hand,  even  when  Mr.  Stoughton  fell.  But  the  alleg I 
tion  that  Mr.  Stoughton  was  struck  with  the  handle  of  the  daggl 
while  lying  on  the  ground,  is  much  more  incredible,  according  | 
the  evidence.  It  is  only  stated  by  Weir,  Haycock,  and  M‘Go\va 
Mr.  Ball,  though  he  speaks  of  blows  w-ith  the  cane,  does  not  co 
firm  them.  He  only  says  that  the  prisoner  struck  Mr.  Stought* 
while  falling ,  two  or  three  blows  with  the  cane,  but  not  after  I  . 
fell.  Mr.  Clark  saw  no  such  blows — Mr.  Phelps  did  not  see  ther 
Mr.  M‘Williams  says  the  prisoner  was  striking,  or  going  to  strii 
the  deceased  with  his  fists,  and  that  he  had  no  cane  in  his  ham 
Mr.  Baker  denies  that  the  prisoner  had  the  cane  in  his  hand  ;  so  <4 
Mr.  Wilder  and  Mr.  Cambreleng. 

Further,  Mr.  Wilder  says  his  impression  is,  that  he  saw  the  da  i 
ger  on  the  cartway,  immediately  after  Mr.  Stoughton  was  raise 
and  on  the  spot  where  they  were,  and  that  he  did  not  see  it  in  M 
Goodwin’s  hand.  Mr.  Weed  says- he  saw  the  two  pieces  of  the  cai 
on  the  cartway  :  he  however  adds,  that  this  was  while  Mr.  Stoug 
ton  was  down.  On  this  latter  point  I  doubt  his  accuracy  as  to  tl  | 
exact  time  ;  as  1  am  also  compelled  to  think  him  mistaken  abo 
the  number  of  blows  which  he  says  were  struck  before  Mr-  Stoug 
ton  fell.  Indeed  the  whole  affair  took  place  so  rapidly,  that  sho  i 
spaces  of  time  might  easily  be  confounded,  and  the  facts  which  a 
certain,  show  he  must  have  erred  in  point  of  time.  The  dagger, 
have  been  lying  on  the  ground  by  the  side  of  Mr.  Stoughton  win 
he  was  down,  must  have  been  drawn  ton  inches  out  of  the  wou 
and  placed  Beside  him.  Mr.  Stoughton's  f.dl  was  oi.  his  back,  ai 


J  39 


•ather  on  the  left,  which  was  the  wounded  sideband  he  lay  in  that 
>osition  :  Mr.  Goodwin’s  hands  are  said  to  have  been  active  from 
he  moment  of  the  fall  about  the  face  of  the  deceased.  The  wound 
have  already  shown,  and  1  think  it  is  certain,  could  not  have  been 
;iven  in  the  conflict  before  the  fall,  but  must  have  been  received 
,uring  or  by  the  fall.  How  then  could  the  hand  of  Mr.  Goodwin 
tave  drawn  the  dagger  out  from  the  back  of  a  man  lying  on  his 
iack,  and  on  the  wounded  part,  for  such  a  length  as  ten  inches,  and 
otbe  observed,  and  his  hands  stated  to  have  been  constantly  active 
bout  his  adversary’s  face  ?  Is  it  not  more  likely  that  Mr.  Weed  is 
aistakenas  to  a  few  seconds  than  that  impossibilities  have  happened? 
le  certainly  is  mistaken  as  to  the  number  of  blows  which  passed 
efore  Mr.  Stoughton's  fall.  Although  looking  on  from  the  very 
rst,  be  saw  but  one  blow  given  by  Mr.  Stoughton,  and  one  by  Mf. 
ioodwin,  which  knocked  the  former  down.  Every  other  witness 
resent  at  that  part  of  the  transaction,  (for  Mr.  Clark  was  not)  agree 
lat  there  were  several  blows  given  by  each  of  the  parties  before 
Ir.  Stoughton  fell.  In  this  respect  as  well  as  about  the  dagger,  if 
Ir.  Weed  had  not  been  disturbed  and  agitated,  he  would  not  have 
een  mistaken.  But  he  could  not  have  seen  the  dagger  lying  by 
Ir,  Stoughton  on  the  ground  ;  for  in  another  part  of  his  testimony, 
e  said  that  when  Mr.  Stoughton  fell,  owing  to  the  crowd,  he  could 
ot  see  him,  and  he  did  not  go  off  his  stoop  to  help  him  up  ;  he 
lerefore  could  not  have  seen  the  dagger  at  that  time.  No  doubt 
e  saw  the  dagger  on  the  ground,  but  it  was  at  the  time  that 
Ir.  Stoughton  fainted,  and  was  again  near  falling;  and  now  to  his 
lind’s  eye  it  appears  as  if  he  saw  it  when  the  deceased  had  fallen, 
e  is  only  wrong  in  the  appropriation  of  a  small  portion  of  time  in 
very  rapid  transaction  ;  and  if  so.  he  was  right  in  all  the  rest. 

It  appears  from  the  testimony  of  some  witnesses,  that  the  prison- 
[•  had  the  dagger  in  his  hand  after  the  affray  ;  but  none  of  them 
av  it  there  till  after  Mr,  Stoughton  fainted.  Mr.  Clark,  who  goes 
rther  in  this  respect  than  any  other,  only  said  he  saw  it  in  Mr. 
oodwin’s  hand  while  the  deceased  was  fainting,  and  he  yesterday 
id  it  was  after  Mr.  Stoughton  had  hunted.  As  to  a  small  portion  of 
ne  or  minute  fact,  his  accuracy  also  may  well  be  questioned,  for 
3  is  doubtless  inaccurate  in  his  account  of  the  scuffle,  and  of  Mr. 
oughton’s  striking  after  he  was  raised  up.  Surely  then,  no  witness 
ho  is  incorrect  in  prominent  transactions,  can  be  implicitly^  relied 
i  for  small  portions  of  time,  of  which  he  now  speaks  only  from 
stant  recollections.  Neither  Weir,  Baker,  Ball,  nor  McWilliams, 
fw  the  dagger  in  Mr.  Goodwin’s  hands  after  the  affray  and  before 
r.  Stoughton  had  fainted.  M‘ Williams  was  peculiarly  well  situa- 
td  for  seeing  every  thing,  and  is  pe'rhaps  the  most  consistent  and 
irrect  of  all  the  witnesses  in  his  whole  story.  M-Gowan  cannot 
iiy  whether  the  prisoner  had  the  dagger  in  his  hand  when  sepa- 
J|ted  from  Mr.  Stoughton.  Mr.  Wilder  denies  it,  and  so  does  Mr. 
•imhreleng.  The  only  explanation  which  can  reconcile  this  tes- 
laony  is,  that  the  dagger  was.  picked  up  and  given  to  the  prisoner  ; 
:d  Mr.  Cambreleng  says  his  impression  is  that  such  was  the  fact. 


140 


Iffy  client,  a  stranger,  and  knowing  nobody  who  was  there,  either 
by  name  or  person,  except  Mr.  Cambreleng,  and  not  having  beei 
himself  observant  of  incidents,  at  the  time  apparently  immaterial 
cannot  designate  by  whom  this  was  done,  nor  produce  him  as  i 
witness  ;  but  the  probability  of  the  fact,  its  tendency  to  reconcile 
apparently  contradictory  evidence,  and  the  impression  of  Mr.  Cam 
breleng,  must  be  enough  to  induce  a  jury  to  believe  that  it  tool  | 
place. 

I  think  the  observations  I  have  submitted  to  you,  are  sufficient  tc 
make  you  reject  that  statement,  upon  which  there  is  so  much  con 
tradictory  testimony,  that  the  prisoner  had  the  dagger  in  his  hand 
and  was  using  it  about  the  head  of  the  deceased  w  hile  he  was  ly  ins 
on  the  ground.  If  that  be  not  the  fact,  and  that  my  client  had  be 
fore  that  parted  with  the  dagger,  let  us  see  whether  an  explanatioi 
of  the  fatal  accident  does  not  naturally  present  itself.  The  prisone 
was  himself  in  danger  of  falling,  and  if  he  had  retained  the  daggei 
in  the  position  in  which  he  was  holding  it,  he  himself  would  h.iv< 
been  the  person  to  have  fallen  on  it  and  to  have  received  th( 
wound.  From  a  vague  apprehension  of  this  danger,  or  in  the  strug  ' 
gle  to  save  himsell  from  losing  his  balance,  he  parted  with  the  wea 
pon.  While  it  was  falling  to  the  ground,  the  deceased  was  falling  also 
the  point  may  have  entangled  in  his  outer  coat,  and  the  weight  ofthi 
handle  may  have  brought  it  to  the  position  capable  of  giving  b 
the  wound  the  direction  which  has  he-  n  sworn  to,  or  Mr.  Stougbtoi 
may  have  fallen  on  the  dagger  as  the  handle  reached  and  rested  01 
the  ground,  before  it  could  acquire  an  horizontal  position  ;  and  af 
tenvards,  when  Mr.  Stoughton  was  raised  up,  the  action  and  motioi 
in  rising,  or  tj)e  weight  and  shifting  of  his  clothing,  or  accidenta 
rubbing  against  some  of  those  that  were  iu  contact  with  him,  ma; 
have  contributed  with  the  weight  and  bulk  of  the  handle,  and  th 
slender  and  tapered  form  of  the  blade,  to  make  it  fall  out,  unob 
served  and  unnoticed  in  the  hurry  of  the  transaction. 

Our  adversaries  have  no  right  to  object  against  this  explanatio 
of  the  melancholy  catastrophe,  that  it  is  unproved.  The  burthen  c 
proof,  as  1  have  already  slated,  still  rests  on  the  prosecutors;  an 
it  is  incumbent  on  them  to  show  a  state  of  tacts,  fixing  with  reason 
able  certainty  the  infliction  of  the  wound,  on  a  voluntary  act  of  th' 
prisoner,  and  irreconcilable  with  any  supposition  of  misadventure 
It  may  be  said,  that  the  casualties  which  i  contend  for  are  nc 
likely  to  occur,  and  are  in  themselves  extraordinary.  To  that 
answer,  that  stronger  objections  lie  against  the  supposition  of 
voluntary  stabbing  by  the  prisoner,  for  it  is  in  itself  nearly  if  nc 
entirely  impossible.  The  range  of  chances  is  almost  incalculable  an 
infinite,  and  every  one  the  least  conversant  with  the  accidents  c 
life,  knows  that  most  extraordinary  results  in  appearance,  frequent 
ly  happen  fortuitously.  There  is  scarcely  a  man  who  has  not  ofte 
seen  things  happen  by  accident,  which  he  could  not  accomplish  b 
any  effort  of  dexterity  or  skill.  And  1  do  not  hesitate  to  say,  th; 
an  impartial  reflector  on  this  subject,  will  he  much  more  incline 
to  believe  that  unexplained  and  perhaps  unnoticed  casualties  cor 
curred  to  cause  the  intliction  of.  the  fatal  wound,  than  that  it  we  < 


141 


he  result  of  a  voluntary  act  of  the  prisoner,  which  could  not  bat 
iave  engaged  the  attention  of  all  the  spectators,  and  which  was  ot>- 
erved  by  none  of  them. 

It  is  true,  that  from  the  contradiction  of  the  witnesses,  nothing 
:xcept  the  wound  itself,  and  its  direction,  can  be  syid  to  be  proved 
vitli  certainty  ;  and  the  unfortunate  man  who  stands  accused  before 
on  knows  nothing  of  the  fatal  misfortune,  nor  could  he  without 
mowledge  of  what  was  to  be  proved,  either  instruct  or  guide  us.  I 
ini  therefore  obliged  to  reason  in  the  alternative,  and  to  show,  that 
rom  no  statement  of  the  facts  can  an  impartial  jury  derive  suffi- 
ient  evidence  of  his  guilt :  and  in  making  inferences  for  or  against 
he  prisoner,  justice  and  mercy  should  go  hand  in  hand. 

The  conduct  of  the  prisoner  after  the  fact,  shows  he  was  not 
onscious  of  the  fatality,  and  that  it  was  entirely  a  misfortune.  The 
urprize  he  manifested  when  the  unsheathed  dagger  was  given  to 
dm  :  his  deliberately  remaining  on  the  ground  until  Mr.  Stoughton 
vas  carried  into  the  neighbouring  store,  and  his  only  then  retiring 
>y  the  advice  of  Mr.  Cambreleng  :  the  open  manner  in  which  lie 
tept  the  dagger  in  his  hand,  without  disguise,  after  it  had  been 
;iven  to  him  :  all  these  things  show  that  he  had  not  knowingly  given 
.  wound.  Had  he  been  conscious  of  killing  the  deceased  with  that 
ame  dagger,  would  he  not  have  thrown  or  given  it  away  ?  Would 
le  not  have  disappeared  among  the  crowd  and  flung  it  into  some 
rea  as  he  passed.  He  did  not  believe  that  Stoughton  was  a  dying 
nan  ;  but  when  he  saw  the  situation  in  which  Stoughton  was  car- 
ied  into  the  store,  and  heard  the  expression  of  Mr.  Phelps,  it  first 
ccurred  to  his  mind  that  some  unfortunate  accident  had  happened 
f'hich  he  was  unable  to  explain  ;  and  then  for  the  first  time  he  asks 
fhether  it  would  not  be  more  prudent  to  pass  over  to  Jersey  for  a 
ime,  than  to  remain  exposed  to  the  threatening  hostility  of  the 
rowd. 

He  arrives  safely  in  Jersey  ;  would  not  conscious  guilt,  if  he 
pere  guilty,  (for  conscience  will  make  cowards  of  us  all)  have 
ounselled  flight  ?  On  the  contrary,  he  walks  with  company  to  the 
avern,  where  he  remains  two  or  three  hours,  at  liberty  to  dispose  of 
imselfas  he  may  think  best.  He  seeks  no  opportunity'  to  escape  ; 
nd  when  the  officers  of  justice  at  length  come  over  and  intimate 
3  him  their  purpose,  though  he  was  apprised  they  had  no  legal 
uthority  to  touch  him,  and  full  well  knew  the  spirit  and  ariijry 
?alousy  of  that  stale,  against  what  they  consider  as  the  usurpations 
nd  encroachments  of  New- York  ;  though  he  had  every  reason  to 
elieve  that  an  army  would  have  turned  out  to  oppose  any  persons 
'ho  would  dare  to  take  a  prisoner  from  among  them,  and  convey 
im  back  to  this  city,  in  violation  of  their  state  authority  ;  yet  he 
t  once  expressed  his  determination  and  readiness  to  accompany 
iem.  And  notwithstanding  the  courage  and  address  of  Col.  War- 
er,  if  my  client  had  raised  that  hue  and  cry,  he  w;  uid  have  exci- 
;d  a  host  that  would  have  made  a  bloody  catastrophe  to  the  expe- 
ttion  of  Col.  Warner  and  his  officers. 

But  no  he  resisted  the  opiuion  intimated  by  a  man  of  the  first 


142 


legal  information.  He  told  Judge  Butler,  I  know  my  rights,  bit  I  «vi 
make  no  resistance.  1  will  not  withdraw  myself  f  rom  the  laws  n< 
from  the  jurisdiction  of  New-}  ork.  In  all  tiiis  transaction  do  yo 
not  find  a  steady  calmness,  and  an  absence  of  all  self-reproacl 
which  must  powerfully  weigh  on  his  side  in  the  scales  of  justice  '! 

Gentlemen  of  the  jury,  1  am  the  last  to  address  you  on  behalf  (J 
my  client,  and  1  must  now  commit  his  worldly  prospects,  his  ch;  j 
meter,  his  happiness  and  fate  on  earth,  to  the  adverse  observatioi  1 
of  most  able  counsel,  and  to  the  deliberations  of  your  judgment 
At  the  time  of  life  to  which  most  of  you  are  arrived,  1  cannot  ho  pi 
successfully  to  call  on  you,  as  perhaps  1  might  on  younger  men,  ar 
entreat  you  to  commune  with  your  own  hearts,  and  to  consider  th 
failings  and  the  frailties  of  youth.  I  scarcely  dare  say  to  you,  that  th 
indiscretions  of  a  young  man  often  result  from  the  noblest  clemen 
of  our  nature  ;  that  God  has  given  to  him  warm  blood,  a  s  iiiguin 
temperament  and  ardent  spirit  ;  that  nature  will  occ.  sionall 
have  its  course,  and  that  the  workings  of  nature  must  be  indulgent!" 
and  mercifully  viewed  by  all  who  are  made  by  Nature’s  God. 
fear  your  opinions  may  be  too  severe  for  such  an  appeal,  and  thil 
there  is  no  point  of  contact  between  you  and  the  unfortunate  prf 
soner  at  tiie  bar,  by  whicii  1  can  hope  to  awaken  your  sympathies! 

But  there  surely  i - some  of  you  must  be  fathers.  Has  any  on  1 

among  you  a  son,  noble,  brave  and  generous,  whom  you  love  wit  J 
ail  a  father’s  fondness,  who  is  the  delight  and  pride  of  bis  mother! 
heart,  and  lovely  in  the  eyes  of  his  sisters  ?  Think  on  hint.  He  mad 
be  involved  by  the  hasty  error  of  a  moment,  or  by  the  precipitanc! 
of  another,  in  one  of  those  terrible  conflicts  which  the  noblest  ar.  I 
the  bravest  cannot  always  avoid.  Jfyou  havesuch  a  sou,  my  eloqueijl 
adversaries,  who  are  to  speak  when  1  must  be  silent,  may  perha|! 
place  him  before  your  eyes,  and  make  a  parallel  between  his  fat  t ! 
and  that  of  Stoughton.  If  so,  1  must  submit  to  it.  But  let  me  cor* 
jure  you,  that  even  the  tender  feelings  they  may  excite,  may  tn 
estrange  your  lie  arts  from  mercy.  Remember  also,  that  if  he  .-houl 
be  engaged  in  such  a  deadly  contest,  lie  may  not  be  so  fortunaUj 
as  to  close  his  eyes,  and  escape  from  the  sorrows,  the  calamities,  th  jj 
miseries,  and  the  agonies  of  life.  He  may  be  the  wretched  surv  I 
vor  :  though  guiltles*  of  any  evil  intent,  he  may  be  doomed  to  nou: 
ish  in  his  bosom  a  never-ending  pang  ;  you  may  hear  l.im  exclaii  *1 
to  yon  in  the  depth  of  grief,  as  that  young  man  has  to  mysel  a 
“  Would  to  God  I  were  in  Stoughton's  place!”  He  may  stand  a>  e 
cased  in  that  very  box,  surrounded  by  the  fears  and  anxious  wishe 
but  1  trust  in  God,  protected  bv  the  prayers,  of  a  denting  and  da 
traded  mother,  and  of  1 1 is  agonized  sisters.  He  may  stand  in  th.  | 
box,  and  you  may  occupy  from  day  to  day,  that  seat  of  torturin'  ] 
suspense  which  the  gallant  brother  of  my  client  has  filled  for  nod 
so  many  days.  A  jury  may  be  called  to  pass  upon  his  actions,  ariw 
to  devote  to  ignominy,  one  intended  by  nature  to  be  an  ornament  t 
the  community  in  which  he  lives,  and  whose  heart  is  guiltless  < 
any  criminal  design.  By  what  rules  wrnuld  you  wish  that  son  to  f 
judged  ?  Would  it  be  by  those  rules,  if  any  such  there  be  of  hum. 
contrivance,  which  are  reckless  of  the  innocence  of  man’s  iutei 


143 


ion,  which  adjust  offences  by  artificial  reasonings,  and  constitute 
rimes  from  a  guilt  created  by  themselves  ;  or  by  that  rule  which 
onies  direct  from  God,  and  by  which  he  administers  justice  in 
lercy  to  all  his  creatures  ?  Would  you  not  entreat  that  his  fellow 
len  might  deal  with  him,  as  you  trust  the  great  Searcher  of  Hearts 
ill  deal  with  him  on  the  final  judgment  of  us  all?  So  do  you  by 
ry  client.  If  his  intentions  were  base  and  wicked,  1  do  not  seek  to 
iv'e  him  ;  but  1  entreat  you,  try  him  by  his  intentions,  as  that 
udge  will  do  who  regards  net  technical  distinctions,  which  are  the 
ffspring  and  the  proof  of  human  weakness  ;  whose  all-seeing  eye 
ioks  into  the  heart  of  man,  and  if  that  heart  is  guilty  will  condemn  ; 
ut  if  innocent,  will  acquit.  I  call  upon  you  now,  and  I  only  ask 
ou  to  act  with  the  prisoner,  as  1  hope  the  God  of  mercies  will, 
hen  you  and  he  shall  stand  before  that  awful  presence;  you  to 
lswer  for  your  verdict,  and  he  for  his  indiscretions.  Let  your 
idgments  be  tempered  by  a  portion  of  the  Almighty’s  loveliest  and 
finest  attribute.  The  rule  by  which  he  will  judge  us  sinners, 
reds  a  light  of  justice  for  your  guidance,  compared  with  which, 
ie  learning  of  these  books  is  darkness,  and  wherever  they  blindly 
epart  from  it,  they  are  only  filled  with  technical  subtleties  and 
etapbysical  error.  Like  the  God  of  wisdom  and  benevolence,  at- 
ch  crime  to  the  intention,  and  to  nothing  else — absolve  the  inno- 
■nt  of  heart;  and  when  you  return  to  the  bar  with  your  verdict, 
y  to  my  client  in  the  blessed  words  of  the  Redeeming  Son  of  that 
od — “  Go,  and  sin  no  more.” 

There  was  now  a  short  recess — the  jury  were  permitted  to  take 
me  refreshment,  and  being  again  called  over  and  answering,  Mr. 
riffin,  on  the  part  of  the  prosecution,  then  addressed  the  jury  as 
Hows  : 

Gentlemen  of  the  Jury  ; 

We  have  now  reached  the  period  of  this  interesting  trial  when 
:  becomes  my  duty  as  one  of  the  counsel  to  whom  the  cause  of  the 
ople  has  been  committed,  to  address  you.  The  event  which 
:ve  rise  to  this  trial  was  one  calculated  to  make  a  deep  arid  lasting 
impression.  The  fatal  21st  of  December,  1819,  is  a  day  long  to 
1  remembered.  On  that  day  our  city  was  alarmed,  not  with  the 
<y  of  fire,  to  which  our  ears  are  accustomed,  but  with  the  cry  of 
nrder  i  Nor  was  it  a  causeless  alarm.  An  interesting  young  man 
■  one  who  had  already  become  the  idol  of  his  relatives,  and  who 
]omised  to  become  an  ornament  to  his  profession,  and  a  blessing  to 
ii  country,  lay  in  our  most  public  street,  writhing  in  the  agonies 
<  a  violent  death,  his  heart  perforated  with  a  dagger.  The  grand 
j  y  of  our  city  have  found  that  the  prisoner  at  the  bar  was  the 
tthorof  this  appalling  scene;  and  that  the  homicide  was  commit- 
tl  under  such  circumstances  as  rendered  it  felonious.  Upon  this 
c  ^rge,  the  prisoner,  has  been  brought  to  his  trial ;  and  surely  n6 
caused  person  ever  appeared  before  a  more  humane  court,  or  a 
fre  patient  and  indulgent  jury.  If  according  to  the  most  charita- 
i!j:  construction  of  the  law  and  of  the  evidence,  the  prisoner  can 
1  found  innocent,  then  in  the  sincerity  of  my  heart  1  say,  “God 


144 


send  him  a  good  deliverance.”  And  even  the  afflicted  parents  < 
the  deceased,  the  sanctuary  of  whose  broken  hearts  one  of  th 
counsel  for  the  prisoner  has  so  needlessly  violated  by  most  unjust!  j 
imputing  to  them  efforts  to  poison  the  public  mind  and  pollute  th 
streams  of  justice — even  these  agonized  and  traduced  parents,  fro 
the  depth  of  their  sorrow,  will  also  say,  if  it  be  possible  that  th  , 
prisoner  is  innocent,  “  God  send  him  a  good  deliverance.”  But  j 
the  pri'Oner  is  beyond  peradventure  guilty — if  he  has  wanton!  . 
imbrued  his  hands  in  human  blood,  audMared  to  commit  this  outraj 
in  the  midst  of  a  populous  and  peaceful  city,  and  in  the  open  face  i 
day,  then,  gentlemen,  not  only  the  laws  of  earth  and  of  heavei  i 
but  even  the  dictates  of  humanity,  demand  his  condemnation.  T  i 
turn  him  loose  again  upon  an  injured  community,  unpunished  at  1 
unreproved,  perhaps  to  march  in  triumph  over  the  very  spot  whei  j 
Stoughton  fell,  would  be  an  event  not  only  repulsive  to  justice,  b  | 
an  event  at  which  mercy  herself,  angel-eyed  and  heaven-hearted;^ 
she  is,  would  drop  an  indignant  tear. 

In  trials  for  homicide,  the  first  inquiry  that  presents  itself  i  j 
whether  a  homicide  has  in  fact  been  committed.  In  the  prese  I 
case,  tnis  point  unfortunately  admits  of  not  a  shade  of  doubt, 
is  hut  too  true  that  the  lamented  Stoughton  sleeps,  never  more  | 
this  world  to  wake.  In  the  morning  of  life,  with  an  horizon  befo 
him  as  broad  and  as  brilliant  as  ever  gladdened  the  eye  of  an  Am 
rican  youth,  he  has  been  suddenly  consigned,  by  a  violent  death,  1 
the  <1  irk  and  silent  tomb. 

The  next  question  in  the  order  of  inquiry  is,  whether  the  pi  •. 
soner  at  the  bar  committed  this  homicide.  The  counsel  for  t  , 
prisoner  have  relied  with  great  emphasis  on  the  supposed  confusi  > 
of  the  testimony.  The  occurrence  to  which  the  testimony  refei 
was  calculated  to  produce  confusion  and  dismay  among  those  wj 
beheld  it  ;  and  it  would  be  passing  strange  indeed,  it  in  the  history'1 
such  a  scene  all  the  witnesses  should  recollect  alike.  But  it  w 
be  found  that  the  great  features  of  the  testimony,  in  substance,  h, 
inonize.  Nor  is  it  surprising  that  there  is  no  witness  who  saw  t* 
mortal  wound  inflicted.  The  confusion  of  the  moment,  and  til 
dress  of  the  deceased  and  the  prisoner,  both  of  whom  had  co<| 
with  large  capes  descending  nearly  to  their  elbows,  afford  a  su- 
cient  explanation.  If  the  wound  was  given  by  an  underhand  bio, 
it  was  indeed  scarcely  possible  tlpit  any  of  the  spectators  shod 
have  seen  it.  That  no  eye  beheld  the  mortal  stab,  is  not,  therefo, 
a  circumstance  from  whence  any  inference  in  favour  of  the  p- 
soner  can  be  correctly  drawn.  The  law  does  not  require  that  mi- 
sure  of  evidence.  Positive  proof  is  never  indispensably  requisil 
A  radical  error  upon  this  subject  sometimes  obtrudes  itself  into  I; 
minds  of  jurymen,  especially  upon  trials  for  homicide.  Permit  5j 
to  say,  that  it  is  a  dangerous  error  ;  an  error  which,  if  indulged  ,  ' 
must  always  embarrass,  and  may  often  totally  obstruct  the  admi- 
stration  of  justice.  Adopt  the  position  that  positive  proof  is  a  i* 
cessary  prerequisite  to  conviction  in  cases  of  homicide,  and  yout  • 
once  throw  the  mantle  of  impunity  over  that  dark  department  f 


145 


rime  where  poison  is  the  instrument  of  murder.  Who  that  is  bent 
n  this  foulest  of  offences,  calls  in  a  witness  to  see  him  administer 
he  fatal  drug  ?  Adopt  this  position,  and  assassination  may  prowl  in 
riumpb  through  the  land,  and  deal  his  deadly  blows  in  safety,  if  he 
nly  deals  them  unseen.  But  this  is  not  a  position  sanctioned  by 
ur  law.  Many  a  culprit  has  been  consigned  to  the  gallows  and  the 
ibbet,  and  that  too  through  the  instrumentality  of  the  most  intelli- 
ent  and  humane  jurors  and  judges,  upon  the  strength,  the  over¬ 
whelming  strength  of  mere  circumstantial  evidence.  Facts  and 
ircumstahces  are  nature’s  testimony  ;  and  they  ofltimes  speak  a 
lore  authoritative  and  convincing  language  than  that  of  the  most 
ositive  witness.  Witnesses  may  be  depraved,  witnesses  may  de¬ 
rive  ;  but  facts  and  circumstances  are  incapable  of  corruption, 
icts  and  circumstances  never  lie. 

And  do  not  the  circumstances  connected  with  this  transaction 
iree  upon  the  most  reluctant  mind  the  melancholy  conviction,  that 
le  prisoner  at  the  bar  is  guilty  of  the  homicide  wherewith  he  is 
harged  ?  In  the  front  of  these  circumstances  stands  the  prominent 
nd  conceded  fact,  that  the  death  of  the  deceased  was  occasioned 
y  the  prisoner’s  dagger.  Now,  either  the  deceased  fell  upon  that 
agger  when  it  was  upon  the  ground,  or  else^  it  was  held  in  the 
risoner’s  hand  when  it  gave  the  mortal  wound.  If  I  am  not  mis- 
iken,  the  evidence  must  convince  you  beyond  the  reach  of  doubt, 
pat  the  first  of  these  suppositions  is  utterly  impossible.  Look  at 
le  handle  of  that  dagger.  You  perceive  that  its  end  is  not  square 
f  flat,  but  oblique.  Nothing  but  a  miracle  could  make  it  stand  ora 
s  end,  unsupported  as  it  must  have  been  by  any  stone,  ice,  or 
her  contiguous  substance  lying  in  the  street  5  and  the  conjecture 
sat  the  dagger  might  have  been  upheld  and  directed  to  the  heart 
the  deceased  by  being  entangled  in  his  garments,  is  scarcely 
ithin  the  range  of  possibility.  Again,  the  witnesses  inform  us 
at  the  deceased  fell  on  his  back.  Then  how  could  the  dagger, 
us  standing  on  the  ground,  have  entered  his  side,  and  perforated 
ijs  heart  ?  The  dagger  thus  situated,  even  if  you  suppose  that  by 
me  magic  power  it  could  have  sustained  itself  On  its  end,  must 
iv e  entered  the  deceased  through  the  back,  and  not  through  the  side, 
isides,  it  is  at  least  difficult  to  suppose  that  the  dagger  would  have 
1  tricated  itself  from  the  body  of  the  deceased  without  extraneous 
i  !,  and  without  being  seen.  But  why  waste  time  in  this  process  of 
lasoning,  when  the  proof  is  positive  and  clear,  that  from  the  com- 
ipncement  of  the  affray,  until  death  concluded  it,  the  dagger  never 
I  t  the  prisoner’s  hand  ?  When  death  had  closed  the  scene,  and  not 
1 i  then,  the  prisoner  threw  the  dagger  away.  As  this  appears  to  me 
the  a  controlling  point  in  the  cause,  I  beg  the  favour  of  your  pa- 
t  nt  attention  while  I  proceed  step  by  step  in  the  examination  of 
tj  evidence  hearing  upon  it.  That  the  dagger  was  in  the  prison- 
<l’s  hand  at  the  commencement  of  the  affray,  that  he  used  it  in  the 
embat,  and  that  it  continued  in  his  hand  down  to  the  time  when 
ywghton  fell,  appears  from  the  testimony  of  Weed,  Weir,  Hay- 
rik,  Ball,  Phelps,  M'Gowan,  and  Vanvalen.  If  the  testimony  of 

19 


146 


these  seven  witnesses  needed  any  confirmation,  you  have  it  froi 
the  lips  of  Mr.  Cambreling.  He  has  testified  before  you  under  t 
common  circumstances.  He  was  the  companion,  and  is  the  frier 
of  the  prisoner  ;  and  yet  we  ventured  to  appeal  to  him  on  the  pa 
of  the  prosecution  l  We  were  not  ignorant  of  the  force  of  h 
friendship  :  even  in  the  course  of  the  present  trial,  we  had  seen 
filling  his  sympathizing  eye,  sometimes  with  the  tear  of  hope,  ai 
sometimes  with  that  of  concern.  We  knew  which  way  his  hea  1 
would  lead  him,  but  we  also  knew  that  his  conscience  would  1 
stronger  than  his  heart.  Nor  has  he  disappointed  our  confidenc 
Though  he  has  clung  close  to  his  friend,  he  has  adhered  still  clos> 
to  his  own  integrity.  Even  from  him  we  have  extorted  decish 
evidence  of  the  important  fact,  that  down  to  the  time  of  Stoughton 
fall,  the  prisoner  still  retained  the  dagger.  And  after  such  ev 
dence,  we  need  not  wonder  that  one  of  the  prisoner’s  own  conns 
found  himself  obliged  in  the  course  of  his  argument  to  concede  tl 
fact,  that  the  dagger  wa3  thus  retained  by  the  prisoner. 

But  the  evidence  does  not  stop  here  :  Weir,  Haycock,  M'Gowa 
and  Vanvalen,  inform  us  that  while  the  deceased  was  down,  the  di  ( 
tinctly  saw  the  dagger  in  the  prisoner’s  hand.  Even  if  you  disr 
gard  the  testimony  of  Vanvalen  on  account  of  his  misconception 
to  the  manner  in  which  the  dagger  was  held,  you  have  still  the  p 
silive  testimony  of  three  witnesses  as  to  the  prisoner’s  possessi  f 
the  dagger  while  the  deceased  was  down.  It  is  true  that  the  oth 
witnesses  did  not  then  see  the  dagger  in  the  prisoner’s  hand.  But 
the  negative  circumstance  that  the  last  mentioned  witnesses  c  . 
Dot  happen  to  see  the  dagger  at  that  time,  to  controul  and  outwei:  jj 
the  positive  oaths  of  the  witnesses  who  testify  that  they  then  d  ■ 
tinctly  saw  it  ?  Does  not  the  plainest  understanding  recognize  a 
sanction  the  well  known  rule  of  our  law,  that  the  positive  testinc 
ny  of  even  a  single  witness  counterbalances  and  overrules  the  tes 
mony  of  many  negative  ones  ? 

But  we  have  reached  another  epoch  in  the  history  of  this  transi¬ 
tion.  The  deceased  has  risen  on  his  feet.  For  a  moment,  he  assurn 
the  attitude  of  defence,  but  he  assumes  it  fora  moment  only.  T ;. 
paleness  of  death  is  seated  on  his  brow,  and  in  an  instant  he  f:u 
into  the  arms  of  a  bystander.  At  this  period  the  fatal  dagger  is  s,' 
seen  in  the  prisoner's  right  hand.  Mr.  Benjamin  Clark  tells  you,  tl: 
he  then  saw  it  there.  And  you  may  readily  conceive  that  the  vie 
of  it,  under  those  circumstances,  was  well  calculated  to  make  a  dei 
and  permanent  impression  on  his  memory  ;  an  impression  whit, 
perhaps,  no  change  of  place  or  lapse  of  time  will  ever  obliterate  : 
impair.  M‘ Williams,  who  received  the  deceased  in  his  arr, 

and  M ‘Go wan,  who  had  witnessed  the  transaction  from  an  ear  < 
period,  confirm  in  substance  the  testimony  oi  Mr.  Clark  ;  andt  | 
further  confirmation  is  wanted,  you  have  it  from  Mr.  Leonard  I- 
ker,  who  testifies  that  after  the  final  fall  of  Stoughton,  he  saw  u 
prisoner  throw  away  the  dagger. 

From  this  review  of  the  testimony,  it  clearly  appears  that  l 
prisoner  held  and  used  the  dagger  until  Stoughton  fell ;  that  wh- 


147 


Stoughton  was  down,  the  prisoner  retained  it  stiil  ;  and  that  after 
;he  deceased  had  risen,  and  finall  y  relapsed  into  the  arms  of  death, 
:hen,  even  then,  the  prisoner  continued  to  wield  in  his  right  hand 
:be  fatal  weapon!  And  are  we  now  to  be  told  that  the  dagger  was 
)n  the  ground,  and  that  unfortunately  the  deceased  fell  upon  it  there? 
How  came  the  dagger  on  the  ground,  and  in  the  very  track  in 
which  Stoughton  was  retreating,  and  how  came  it  back  again  into 
he  prisoner’s  hand  ?  If  it  was  thrown  or  fell  from  him  before  the 
'atal  deed  was  done,  why  did  no  person,  not  even  Mr.  Cambreleng, 
iee  or  hear  it  fall  ?  And  who  restored  it  to  the  prisoner  ?  Not  even 
Mr.  Cambreleng  has  ventured  to  swear  that  any  person  restored  it. 
\nd  had  such  a  person  existed,  would  he  not  have  announced  him- 
;elf  as  a  witness,  or  at  least  have  been  discovered  by  the  industry 
)f  the  prisoner’s  friends  ?  The  visionary  theory  then,  that  by  per- 
idventure  the  dagger  was  on  the  ground,  and  the  deceased  fell  on 
it  there,  is  dissolved  by  the  stubborn  fact,  that  until  after  the  work 
if  death  was  accomplished,  the  dagger  never  went  out  of  the  pri- 
ioner’s  hand.  Nor  has  the  prosecution  any  difficulty  to  encounter 
rom  the  alleged  want  of  power  in  the  human  arm  to  inflict  such  a 
vound,  in  the  then  situation  of  the  parties.  The  situation  of  the 
>nrties  was  constantly  varying,  and  therefore  forms  a  ground  for 
to  definite  theory.  Sometimes  the  deceased  presented  his  front,  and 
n  his  retreat,  he  no  doubt  sometimes  presented  his  side  to  the  as- 
ailant.  The  supposed  lack  of  power  in  the  human  arm  to  inflict 
uch  a  wound,  rests  on  no  other  basis  than  the  solitary  unsupported 
ipinion  of  Dr.  Mott.  Opposed  to  his,  stand  arrayed  the  opinions  of 
bur  surgeons  as  respectable  as  himself.  That  the  arm  of  an  athletic 
nan,  invigorated  with  rage,  is  unable  with  such  a  weapon  to  inflict 
uch  a  wound  i  To  refute  this  supposition,  we  need  not  travel  back 
o  the  times  of  Sampson  or  Achilles,  nor  need  we  have  resorted  to 
he  learned  gentlemen  of  the  faculty.  Contemplate  for  yourselves, 
he  prowess  of  a  vengeful  right  arm  at  the  present  day  ;  mark  its 
perations  during  a  single  campaign,  or  even  a  single  battle  ;  see  it 
evering  limbs  from  their  trunks,  and  cleaving  heads  asunder  !  An(d 
hen  judge  for  yourselves,  in  what  estimation  you  are  to  hold  the 
iypothesis  of  the  learned  Doctor  Mott.  Nor  was  the  arm  of  the  pri- 
oner  an  inexperienced  one.  To  show  this,  a  witness  was  asked 
ffiether  the  prisoner  had  not  been  a  military  man.  The  object  of 
he  question  was  not,  as  the  adverse  counsel  have  most  unjustly  in- 
inuated,  to  cast  indirect  reproach  upon  the  military  and  naval 
eroes  of  our  country.  Its  object  was  simply  to  show,  that  from  his 
ursuits  in  life,  the  prisoner  must  have  been  expert  in  the  use  of 
mis. 

The  supposition  of  the  dagger’s  being  on  the  ground,  and  that 
le  deceased  fell  or  was  thrown  upon  it,  being  thus  excluded  by  the 
vidence,  it  will  be  useless  for  me  to  follow  the  learned  counsel  for 
le  prisoner,  in  the  ingenious  inferences  which  they  have  attempt- 
d  to  deduce  from  that  supposition,  or  to  inquire  whether  or  not 
eath  thus  occasioned  would  be  manslaughter,  and  manslaughter 
iabls  under  the  present  form  of  indictment.  Willing  as  I 


148 


should  be,  to  assume  the  affirmative  of  each  of  these  questions, 
am  relieved  from  that  duty  by  a  mass  of  evidence,  clearly  showir 
that  the  dagger  was  grasped  in  the  prisoner’s  hand  when  it  pent 
trated  the  heart  of  the  deceased.  If  this  is  indeed  the  necessai  . 
inference  from  the  testimony,  it  follows,  of  course,  that  the  impor 
ant  point  has  been  established,  even  according  to  the  very  letter  i 
the  indictment,  that  the  prisoner  committed  the  homicide.  And  tt 
establishment  of  this  point,  places  the  case  within  the  range  of  tk 
principle  of  criminal  law,  which  1  submitted  to  you  in  an  early  stag 
of  the  trial  :  That  in  every  charge  of  homicide ,  the  fact  of  killing  beir, 
first  made  out ,  all  the  circumstances  of  excuse  or  justification  are  i 
be  satisjactorily  proved  by  the  prisoner.*'  Has  the  prisoner,  in  tb 
case  before  you,  satisfactorily  prov  ed  any  circumstances  of  justit 
cation  or  excuse?  The  justification  of  self-defence  i3  scarcel 
pretended.  The  excuse  of  accident  is  relied  on.  One  pretence  ( 
accident  has  already  been  exploded.  Other  modes  of  accident  ar 
suggested  ;  but  has  any  of  them  been  satisfactorily  proved  ?  It  i 
not  for  us  to  disprove  these  suggestions,  but  for  the  prisoner  cleai 
ly  to  establish  them.  Without,  however,  further  pressing  the  prir 
ciple  which  devolves  upon  the  prisoner  the  burden  of  the  proo 
vve  will  proceed  to  show  that  the  excuse  of  accident,  even  it  it  e^ 
isted  in  point  of  fact,  could  not,  under  the  circumstances  of  th 
present  case,  afford  the  prisoner  any  legal  defence.  And  here  t 
must  invite  your  attention  to  another  principle  of  law,  which  l  pr< 
sented  to  your  consideration  at  an  early  stage  of  this  cause.  Th 
principle  here  alluded  to  is  this  :  That  wherever  the  defence  of  acc 
dent  is  relied  on,  in  a  case  of  homicide,  it  must  appear  that  the  perse  | 
committing  the  homicide  was  not  engaged  in  a  violation  of  the  law 
If  the  shedder  of  human  blood  expects  to  escape  with  impunity,  h 
must  show  that  though  his  hands  are  stained,  his  heart  was  pun 
and  that  his  feet  were  not  treading  in  forbidden  paths.  The  c.asi 
which  have  been  read  to  you  from  the  books,  (here  the  couns' 
went  at  large  into  the  cases  which  he  had  before  cited)  show  th 
antiquity,  the  universality,  and  the  sacredness  ot  this  great  princ 
pie  of  the  common  law.  The  counsel  for  the  prisoner,  aware  ( 
the  tremendous  bearing  of  this  principle  upon  their  client's  casr 
have  intimated  to  you,  in  a  way  not  to  be  misunderstood,  their  wis 
that  you  should  expunge  from  the  common  law  this  ancient  and  vit 
principle,  or  that  you  should  at  least  modify,  impair,  and  cramp  i 
operation.  In  reply  to  this  intimation,  1  might  remind  you  of  yor 
oath.  But  cancel  that  oath,  and  I  trust  that  your  decision  would  t 
the  same.  It  must  be  the  same,  if  you  have  duly  considered  th 
utility  and  majesty  of  that  venerable  system  ofjurisprudence,  know 
by  the  name  of  the  common  law ;  a  system  which  our  forefatkei 
brought  with  them  to  this  country,  and  which  they  hugged  to  the 
bosoms  with  almost  as  much  ardour  as  they  did  their  religion, 
was  at  the  altar  of  this  very  common  law,  that  the  spark  of  17" 


*  Seepage  105.  f  See  pages  105,  10S. 


S49 


ras  kindled.  And  if  our  revolution  differed  from  all  other  revolu- 
10ns  that  preceded,  or  have  followed  it — if  it  differed  from  that 
rhich  is  now  working  its  convulsive  course  in  the  southern  part  of 
bis  hemisphere — if  our  infant  independence  was  not  baptized  in 
ivil  blood,  it  was  because  the  common  law  “rode  on  the  whirl- 
/ind  and  directed  the  storm.”  This  common  law  has  been  our 
ountry’s  earliest,  best,  and  may  it  remain  its  latest  friend.  Vene- 
ate,  and  teach  your  posterity  to  venerate  its  transcendent  virtues  ; 
espect  even  its  foibles  ;  and  let  no  rude  hand  pluck  a  hair  from 
is  hoary  bead. 

Nor  is  this  principle  of  the  common  law  harsh  or  unreasonable, 
f  a  man  will  engage  in  an  unlawful  enterprize,  or  pursue  any  eu- 
arprise  whatsoever  by  unlawful  means,  or  with  unlawful  weapons, 
e  must  be  contented  to  do  it  at  his  peril  ;  and  if  a  homicide  oc- 
urs,  he  ought  not  to  expect  that  the  law  will  hold  him  guiltless. 
,et  us  apply  this  principle  to  the  case  under  consideration.  On  the 
1st  of  December,  at  the  hour  of  three  o’clock,  the  deceased  w’as 
oing  up  Broadway,  probably  with  an  intention  of  proceeding  to 
is  father’s  house.  The  prisoner  at  the  bar,  in  company  with  Mr. 
•ambreleng,  met  him.  The  deceased  was  unarmed  ;  the  prisoner 
'as  armed  with  a  swordcane.  As  he  approached  the  deceased, 
te  prisoner  pointed  at  him  with  his  cane.  Perhaps  this  pointing 
f  the  cane  was  of  itself  a  consummated  offence, 

(The  Mayor  here  observed,  that  he  did  not  consider  the  pointing 
f  the  cane,  under  the  circumstances,  as  coming  within  the  legal 
otion  of  an  assault.) 

Mr.  Griffin  proceeded. — The  pointing  of  the  cane  was  the  light- 
st  circumstance  of  the  aggression.  it  was  the  outrage  of  the 
ingue  that  gave  to  the  transaction  its  character.  The  words, 
there  goes  a  scoundrel  and  coward,”  accompanied  the  pointing  of 
le  cane,  and  the  words  were  reiterated  by  the  prisoner  as  he  pass- 
d  the  deceased.  The  pointing  of  the  cane  was  seen,  and  the  in- 
ilting  appellations  were  heard  by  the  person  for  whom  they  were 
itended.  The  deceased  instinctively  paused.  But  he  remembered 
hat  was  due  to  the  laws  of  his  country  :  he  communed  with  his  indig- 
mt  spirit,  and  for  a  moment  impressed  upon  it  the  mighty  resolution 
’  risingabove  the  insult.  He  proceeded  towards  home,  but  the  load 
as  heavier  than  he  could  bear  ;  reflection  goaded  him  to  frenzy.  He 
id  been  pointed  at  in  our  most  public  street,  and,  in  the  presence  of  a 
itness,  branded  with  the  appellations  of  scoundrel  and  coward.  He 
It  himself  to  be  an  outlaw  in  the  universe.  Hapless  youth ! 
’hither  could  he  go  ?  Could  he  enter  the  presence  of  his  venera- 
e  and  revered  mother,  branded  with  the  appellations  of  scound- 
1  and  coward  ?  Could  he  proceed  to  the  house  of  a  father  of  Cas- 
ian  honour,  branded  with  the  appellations  of  scoundrel  and  cow- 
d  ?  Where,  oh  where  could  he  spend  his  hours  of  conviviality, 
■anded  with  the  appellations  of  scoundrel  and  coward  ?  The 
iceased  returned  ;  he  gave  a  blow.  Had  he  done  otherwise, 
i  must  have  been  something  more  or  less  than  human.  He 
ust  have  had  much  of  the  brute,  or  something  of  the  divinity 


160 

about  bun.  He  must  have  been  sunk  below  the  level  of  the  Ho 
tentot,  or  else  he  must  have  taken  deep  lessons  in  the  school  < 
him,  who  spoke  as  man  never  spoke,  and  whose  kingdom  is  not  • 
this  world.  But  the  deceased  did  not  begin  the  affray.  It  is 
mockery  on  his  memory  to  say  that  he  began  the  affray.  The  fir 
blow  was  the  blow  of  the  tongue;  a  blow  more  piercing  than  th: 
which  the1  dagger  gave. 

But  the  second  act  of  the  tragedy  is  at  hand.  Upon  receiving 
slight  blow,  which  he  himself  had  provoked,  and  indeed,  calculatin 
upon  the  common  principles  of  our  nature,  rendered  inevitable,  tb 
prisoner  strikes  the  deceased  with  his  swordcane.  The  daggf 
immediately  becomes  separated  from  the  sheath,  and  is  retained  b 
the  prisoner.  At  the  sight  of  the  deadly  weapon,  the  decease 
begins  to  retire.  With  this  deadly  weapon  in  his  right  hand,  tb 
prisoner  pursues  his  unarmed  and  retreating  victim,  striking  hi  ' 
with  the  dagger  until  he  fell,  and,  as  man}'  of  the  witnesses  testifi 
after  he  had  fallen.  Was  the  use  of  such  a  weapon,  uuder  sue 
circumstances,  lawful  ?  If  its  use  was  unlawful,  then  the  prisone 
according  to  the  principle  heretofore  stated,  and  the  cases  read  1 
you  as  elucidating  that  principle,  used  it  at  his  peril,  and  must  t 
responsible  for  the  consequences.*  Ia  what  code  of  laws  is  tb 
justification  of  such  an  use  of  such  a  weapon  to  be  found  ?  Is  { 
contained  in  the  law  of  self-defence  ?  It  is  a  kind  of  impiety  to  a 
tempt  to  apply  that  great  and  hallowed  principle  of  nature’s  juri 
prudence  to  such  a  case.  Is  it  to  be  found  in  the  laws  of  chivalry 
Do  the  rules  of  the  school  of  honour  indeed  sanction  the  positio  i 
that  a  soldier  prepared  with  a  swordcane,  may  by  gestures  ar 
words  insulting  beyond  forbearance,  tempt  an  unarmed  citizen  l  j 
strike  him,  and  that  he  may  then  pursue  the  unequal  combat  wii 
the  drawn  dagger?  Is  the  justification  to  be  found  in  the  law  of  tl 
land  ?  To  you,  gentlemen,  as  the  sworn  administrators  of  that  lav 
the  question  is  solemnly  propounded ;  and  your  answer,  your  m> 
mentous  answer,  is  presently  to  be  registered  on  the  records  • 
this  court.  Say  that  the  conduct  of  the  prisoner  was  lawful,  pn 
nounce  that  the  venerable  law  of  the  land  will  henceforth  sam 
tion  such  transactions,  and  your  verdict  will  form  an  era  in  tl 
moral  history  of  this  community,  of  portentous  and  awful  bearin 
Yes,  gentlemen,  the  prisoner’s  acquittal  might  accomplish  moi 
mischief  than  his  dajrger  wrought ;  it  would  be  planting  a  dagger 
the  heart  of  our  criminal  jurisprudence.  Will  you  plant  that  daggf 
there  ?  No,  gentlemen,  I  am  persuaded,  that  arduous  and  heart-tryii 
as  are  your  obligations,  you  will  perform  them  faithfully.  And,  t 
pursue  the  case  so  pathetically  supposed  by  the  counsel  who  la 
addressed  you,  I  trust,  that  even  were  the  prisoner  at  the  bar  yoi 
own  son,  you  would  triumphantly  rise  above  the  yearnings  of  n 
ture,  and  that,  like  a  jury  of  Roman  fathers,  you  would  do  yoi 
duty. 


See  pages  106, 10". 


151 


But  upon  what  basis  rests  the  supposition  that  the  wound  was  in- 
licted  by  accident  ?  How  accidental  ?  He  upon  whom  the  duty  of 
xplaining  devolves,  has  given  us  no  satisfactory  explanation.  The 
rysterious  exchange  of  canes  the  very  evening  before  the  fatal 
encounter  ;  the  prisoner’s  ramble  in  Broadway,  armed  with  a 
eadly  weapon,  at  the  hour  when  the  deceased  was  known  to  be  in 
ae  habit  of  proceeding  through  that  street  from  his  office  to  his 
ither’s  house  ;  the  unprovoked  outrage  of  the  tongue,  succeeded 
y  the  use  of  the  swordcane,  are  circumstances  fraught  with  awful 
idications  of  design.  And  when  the  swordcane  becomes  separated, 
ffiy  is  the  sheath  thrown  away,  and  the  dagger  deliberately  re- 
'lined  ?  The  sheath,  by  itself,  is  a  formidable  cane,  better  calcu- 
ited  than  the  dagger  for  striking  or  any  other  ordinary  purposes 
f  combat.  But  the  dagger  is  best  fitted  for  a  deadly  thrust !  It  is 
stained  ;  it  is  used  ;  and  the  deceased  falls.  The  fall  was  a  pecu- 
ar  one,  and  filled  the  spectators  with  surprise.  They  saw  no 
low  given  adequate  to  produce  such  a  fall.  The  dagger,  could  it 
leak,  would  solve  the  mystery.  But  the  prisoner  was  cool  and 
dm  over  the  scene  of  death  ;  and  therefore,  say  his  counsel,  he 
mst  be  innocent.  A  bystander  pronounced  his  victim  “  a  dead 
ian.”  These  words  were  heard  by  the  prisoner,  and  made  such 
1  impression  on  his  mind,  that  he  afterwards  repeated  them  to  his 
impanion,  Mr.  Cambreleng,  as  an  excuse  for  his  flight.  He  well 
aevv  the  truth  of  the  words.  He  knew1  the  energies  of  his  own 
ght  hand,  and  the  paleness  of  death  which  had  seated  itself  upon 
>e  face  of  his  victim,  assured  him  that  the  dagger  had  not  missed 
3  aim.  But  amidst  the  general  perturbation  he  was  cool  and  calm  ! 
o  tear  of  sympathy  softened  his  eye  ;  no  pang  of  regret  moved 
s  heart.  lnnocencjr,  gentlemen,  never,  in  any  age  or  clime,  stood 
us  composed  and  indifferent  over  a  dying  man,  whom  it  had  by 
isadventure  slain.  The  coolness  and  calmness  of  the  prisoner, 
ere  the  coolness  and  calmness  of  stern,  and  ruthless,  and  inflexible 
mgeance.  He  was  unmoved,  because  no  event  had  happened  but. 
■  at  which  he  desired  and  purposed  ;  he  pressed  the  call  of  no  me- 
> cal  aid,  for  he  well  knew  that  there  was  only  one  Physician  who 

<  uld  cure,  and  not  even  He  without  the  performance  of  a  miracle. 
:it  the  prisoner  returned  from  Nevv-Jersey  without  resisting  the 
]  lice  officers  who  had  been  sent  after  him  !  And  is  this  evidence 

<  innocency  ?  What  benefit  wmuld  have  resulted  from  his  resist- 
fee  ?  It  might  have  gathered  around  him  an  assemblage  of  people  ; 

I  t  let  me  assure  the  learned  counsel,  that  the  good  people  of  New- 
-,rsey  would  have  assembled,  not  to  aid  the  escape,  but  to  secure 
i  safe  custody,  the  shedder  of  human  blood  fleeing  from  justice. 

Had  the  prisoner  been  indicted  for  murder,  his  trial  might  have 
fen  more  perilous  to  him  than  “the  imminent  deadly  breach.’' 

I I  the  grand  jury  have  kindly  mitigated  the  offence  to  the  grade 
t  manslaughter  ;  and  you,  gentlemen,  are  urged  with  all  the  power 
H  pathos  of  impassioned  eloquence  to  whiten  it  info  innocent'1. 
r-’  make  a  lodgment  in  your  hearts,  the  gallant  brother,  and  the 
y  ithfuj  and  lovely  sister,  and  the  venerable  mother  of  tbe  prisoner. 


152 


have  been  arrayed  before  you.  The  syren  voice  of  pity  has  bee 
sounded  in  your  ears  in  behalf  of  the  prisoner’s  youth.  And  vt 
have  been  invoked  as  you  value  your  own  salvation,  to  temper ju 
tice  with  mercy.  Mercy  is  indeed  an  heavenly  attribute — it  is  tl 
very  attribute  of  the  Godhead,  to  which  we  erring  mortals  will  me 
ardently  cling  in  that  day  of  retribution,  when  we  must  all  appe 
before  the  judgment  seat,  not  as  judges,  or  jurors,  or  counsel,  b 
as  prisoners  at  the  bar.  Nor  is  this  favourite  of  the  skies  a  stra 
ger  to  our  system  of  juri- prudence.  Our  constitution  has  provid- 
a  place  for  it  to  dwell  in,  even  the  mercy-seat  of  the  executiv 
But  jurors  may  not.  must  not  tamper  with  it  ;  an  oath  enjoins  the 
to  forbear.  It  is  chiefly  because  the  law  knows  jurors  to  ha 
compassionate  and  erring  hearts,  that  it  for’ifies  them  by  an  oatl 
compelling  them  to  lay  their  hands  upon  the  word  of  life,  and  to  c; 
upon  God  to  help  them,  or  not  to  help  them,  as  they  decide  accor ; 
ing  to  the  law  and  the  evidence.  Awful  alternative,  cleaving  unll 
or  renouncing  the  help  of  (Jod!  And  yet,  gentlemen,  this  oat  j 
with  all  its  sanctions,  rests  upon  yrnur  souls.  Keep  your  eye  ste 
fastly  fixed  upon  it,  as  the  polar  star  to  direct  you  in  all  your  d 
liberations.  That  solemn  oath  requires  you  to  do  your  duty.  T 
blood  of  Stoughton,  from  his  new-made  grave,  demands  you  to  { 
your  duty.  And  as  one  of  the  ministers  of  the  law,  1  call  up^ 
you,  in  the  name  of  the  ever-living  God,  to  do  your  duty. 

Emmet.  Before  Mr.  Wells  goes  on,  l  beg  leave  to  refer  to  t 
testimony  of  Mr.  Cambreleng,  that  the  facts  may  not  be  left  in  douH 
He  says,  that  in  striking  the  blow,  the  dagger  flew  out  of  the  sheath 
and  was  partly  exposed  to  view. 

The.  Mayor.  Mr.  Emmet,  do  you’not  omit  a  part  of  that  evidence 
that  it  came  out  about  four  or  five  inches;  and  that  he  changed  1 
hold,  and  took  the  dagger  part  in  his  right  hand  by  the  blade  ? 

Emmet  read  a  passage  from  his  own  notes,  not  materially  var 
ing,  but  that  he  should  ask  when  it  came  to  his  turn,  upon  wlj 
ground  it  could  be  expected  of  the  prisoner  to  abandon  the  point." 
weapon  to  his  assailant,  keeping  only  the  sheath  in  his  own  hands  > 

Mr.  Wells  then  summed  up  on  behalf  of  the  Prosecution. 
Gentlemen  of  the  Jury  : 

In  discharging  the  duty  which  it  remains  for  me  to  perforr 
which  I  owe  to  public  justice — to  the  memory  of  a  man  who  w 
my  friend — whom  1  knew  and  esteemed — whom  1  loved  in  life,  ai 
lamented  in  death  ;  1  shall  have  much  more  need  to  struggle  wi 
my  own  feelings  than  to  endeavour  at  exciting  yours. 

1  do  not  seek  to  gratify  vindictive  passions.  1  will  not  appeal' 
your  passions,  nor  to  your  prejudices  if  any  you  can  have  :  1  d 
claim  every  attempt  of  that  kind,  nor  would  I  triumph  over  guilt- 
self,  by  any  other  ways  than  those  of  truth  and  justice. 

The  counsel  for  the  prisoner  have  treated  with  some  respect  t: 
memory  of  the  deceased.  Why  did  they  not  also  respect  the  pare# 
who  Jiave  lost  for  ever  their  beloved  son  ?  Why  drag  them  in 


153 


otice  ?  Why  charge  them  with  attempts  to  irritate  the  public  feel- 
ig,  and  prepossess  the  judgment  of  a  jury  ?  What  has  transpired  to 
warrant  such  insinuations,  as  cruel  as  unfounded?  Why  no.  rather 
leave  the  stricken  deer  to  weep  ?”  Why  rudely  profane  the  sane- 
iary  of  a  father’s  and  a  mother’s  sorrow  ?  Why  not  permi  them  in 
ecret  to  bewail  their  loss,  to  mourn  for  their  child,  to  commune 
'ith  their  God,  who  alone  can  solace  their  affliction  ? 

It  will  not  be  expected  of  me  at  this  late  hour,  fatigued  as  we  all 
re,  and  1  particularly  so,  to  enter  into  the  long  details  of  all  the 
vsticnony.  This  is  less  necessary,  since  it  has  been  put  before  yon 
etter  than  I  am  capable  of  putting  it.  I  shall  retrace  the  bold  out- 
nes  of  the  case,  and  nothing  more.  I  shall  present  the  facts  in  such, 
onnfection  as  in  my  judgment  will  lead  you  to  the  necessity  of  pro* 
ouncing  a  verdict  of  guilty,  i[  your  verdict  is  to  be  “  according  to  the 
vidence.”  And  I  beseech  you,  gentlemen,  let  no  considerations 
ffluence  your  minds,  but  those  derived  from  truth  and  justice,  and 
om  the  evidence  on  which  you  have  sworn  with  such  solemnity 
i  find  your  verdict,  I  ask  for  that  much  at  your  hands,  I  ask  for 
othing  more. 

Look  at  the  circumstances  which  led  to  this  unhappy  tragedy, 
ee  with  what  characters  they  are  marked  throughout — whether 
ley  do  not  clearly  evince  a  settled  and  deliberate  purpose  of  the 
ind.  Walking  in  Broadway  from  the  City-Hotel  to  the  Park  and 
ick  again,  at  an  hour  when  it  was  almost  impossible  but  the  de¬ 
based  should  pass,  since  at  that  hour  he  daily  passed  that  way — do 
)u  believe  that  this  was  purely  accidental  ?  If  it  were  so,  how  dif- 
rent  would  have  been  the  prisoner’s  conduct.  Mr.  Stoughton  was 
:en  at  the  distance  of  forty  or  fifty  paces.  Mr,  Cambreleng  names 
in,  saying,  there  is  your  man,  or,  there  is  your  friend  Stough- 
n.  What  does  he  then  ?  If  his  intent  had  been  merely  to  convey 
his  friend  the  opinions  he  had  formed  of  the  deceased,  why  not 
en  reply?  Instead  of  that,  his  lips  are  closed.  No  word  escapes 
1  it  can  reach  the  ear  of  Mr.  Stoughton — calmly  and  deliberately 
aking  up  his  mind,  during  an  approach  of  thirty  or  forty  paces, 
r  that  insult  which  he  proclaims  as  soon  as  he  comes  within 
iaring  distance.  Then  he  raises  his  cane,  and  in  words  loud 
aough  to  be  heard  by  the  deceased,  he  says,  there  goes  a  cow¬ 
'd  and  a  scoundrel.”  And  lest  this  should  not  be  enough,  the 
ords  are  again  repeated  as  he  passes  by  his  elbow.  And  why 
lint  at  him  with  his  cane,  why  put  it  in  his  face,  if  his  design  was 
lerely  to  indicate  the  person  to  his  friend,  whom  that  friend  had 
ie  moment  before  mentioned  to  him  by  name?  No,  gentlemen,  there 
’  uld  he  no  other  motive  than  to  provoke  a  quarrel.  There  is  no 
fier  design  imputable  to  words  and  gestures  of  this  kind  !  He  must 
live  known  that  Stoughton,  bold,  manly,  and  high-spirited  as  he 
vis,  could  not  but  resent  an  insult  so  gross,  proclaimed  in  open  day, 
;  d  in  the  public  streets.  But  if  his  opinion  was  such,  if  he  did  think  so 
v  ely  of  him  as  that  he  would  submit,  then  there  might  have  been 
vieed  another  motive,  but  one  so  mean  and  dastardly,  as  I  would 

20 


154 


not  Impute  to  the  prisoner  :  because  of  all  species  of  cowardice, , 
would  be  the  most  odious  and  contemptible. 

This  language,  this  pointing  then,  was  clearly  with  the  view  < 
provoking  his  resentment  and  bringing  on  the  affray.  And  t’noug 
at  that  moment  he  might  have  no  definite  intention  of  taking  Mi 
Stoughton’s  life,  yet  when  such  provocation  was  given,  it  was  to  b 
followed  by  its  natural  and  necessary  consequences — the  quam 
that  was  looked  for.  I  speak  from  my  own  knowledge,  what  a 
who  knew  Mr.  Stoughton  must  have  known,  that  he  would  rathe 
have  stepped  into  his  grave  than  not  resent  an  insult  which  th 
tamest  and  the  meanest  of  mankind  could  not  endure.  And  yet  be 
cause  he  did  not  submit  to  this  treatment,  he  is  called  the  aggressi 
and  provoker  of  that  quarrel  in  which  his  life  was  taken  so  ut 
worthily,  which  ended  in  a  tragedy  that  has  caused  tears  that  w; 
flow  while  life  shall  last. 

Yes!  he  provoked  an  unarmed  man,  holding  in  his  own  hand 
stick,  but  what  is  worse,  a  stick  in  which  a  dagger  was  concealed 
a  stick  which  but  the  night  before  he  had  been  told  it  was  unsa 
to  use  even  to  walk  with.  You  all  remember,  gentlemen,  that  M 
jor  Smith,  when  pressed  to  the  exchange,  cautioned  him  that  tl 
dagger  was  loose  and  apt  to  slip,  and  that  the  string  that  fastened 
was  old  and  short,  and  to  be  careful  in  the  use  of  it.  That  vvitne | 
told  you  that  when  he  had  his  foot  upon  a  chair,  tapping  with  th, 
cane  upon  his  boot,  the  blade  exhibited  itself  to  view.  He  mu| 
have  known  that  when  he  attacked  his  adversary  with  it  the  shea 
would  fly,  and  the  first  blow  showed  that  Major  Smith  had  not  ca( 
tioned  him  without  good  reason. 

There ,  was  a  moment  that  might  have  appealed  to  his  manhood- 1 
to  his  honour — that  might  have  warned  his  conscience,  and  adm 
nished  him  anew  that  he  held  that  instrument  which  it  was  ungen 
rous  and  inhuman  to  make  use  of,  and  which  he  should  have  i 
stantly  cast  from  him.  Not  so  !  he  seizes  the  blade,  anil  the  on 
notice  he  takes  of  it,  the  only  idea  it  conveys  to  him,  is,  that  it 
better  for  his  purpose  than  the  cane,  which  he  might  have  retain' 
with  equal  ease,  had  his  intentions  been  less  merciless.  And  ti 
moment  after  the  catastrophe  in  which  this  combat  ended,  whii 
lasted  but  some  moments,  he  stands  w  ith  this  dagger  in  his  hand,  and 
that  same  instant  we  find  his  adversary  closing  i  is  eyes  in  everl.i: 
ing  darkness.  Is  not  the  conclusion  irresistible,  that  Mr.  Slough; 
came  to  his  death  by  this  weapon,  thus  in  the  prisoner’s  hand,  a; 
used  by  him  ? 

Here  the  prosecution  might  have  rested.  Here  was  a  case 
unequivocal  homicide  made  out.  And  it  w'ould  then  have  been  I 
ihe  prisoner  to  have  shown  his  excuse,  and  explained  the  part 
took  or  did  not  take  in  this  affray.  It  was  for  him  to  show  that  l 
deceased  was  slain  from  some  excusable  or  justifiable  cause.  Ji 
tifiable  they'  do  not  pretend  it  was  :  the  boldness,  the  ingenui 
of  his  counsel  has  not  ventured  to  assume  that  ground  :  hut  th1 
have  said  it  was  excusable  by  misadventure.  Why  was  not  tlj 


155 


ccident  or  misadventure  shown  ?  Who  was  to  account  to  the  jury 
nd  to  the  law  for  the  stab  and  for  the  death  ?  Can  you  believe  the 
iw  so  inefficient  ?  True,  it  excuses  accident,  for  it  is  merciful,  and 
unisnes  no  guilt  but  of  intention.  But  can  it  so  far  ally  itself  with 
centiousness,  so  far  encourage  audacity  and  embolden  crime,  as 
fiat  a  man  may  sally  forth  in  open  day,  a  deadly  instrument  about 
is'person,  vengeance  in  his  heart,  and  insult  on  his  tongue,  seek- 
ig  a  conflict,  ending  it  in  death,  and  then  satisfy  an  injured  com- 
lunity  and  violated  law  by  saying,  1  did  not  intend  what  I  did,  I 
id  not  know  what  I  was  doing,  I  am  innocent,  1  am  persecuted,  1 
annot  say  how  this  thing  happened,  1  only  know  it  was  by  acci- 
ent ;  and  since  it  is  doubtful  how  it  happened,  a  jury  must  ac- 
uit  me  ? 

Why  carry,  why  use  this  deadly  weapon  ?  Why  was  the  deceased 
/ay laid  on  his  accustomed  path,  provoked  with  the  tongue,  and 
tabbed  to  the  heart  with  that  very  weapon  which  the  prisoner 
sed,  and  which  we  here  produce?  Was  all  this  misadventure  ? 
tffiy  not  rather  throw  it  away,  since  he  stood  not  in  any  need  of  it 
ir  his  defence  ?  for  no  one  will  pretend  that  in  strength,  still  less 
i  skill  infighting,  the  deceased  was  his  superior.  Why  not,  if  he 
as  so  high  spirited,  throw  away  his  dagger  and  attack  without  arms 
man  that  was  unarmed  ? 

Let  me,  gentlemen,  propose  a  parallel  case  by  way  of  illustra- 
on.  Suppose  a  man  to  walk  the  streets  carrying  a  loaded  gun,  and 
)  provoke  a  quarrel  ;  the  gun  is  discharged,  the  adversary  falls  ; 
!1  this  is  proved  by  many  witnesses,  he  stands  by  the  party  slain, 
le  gun  still  in  his  hand,  but  nobody  has  seen  him  pull  the  trigger— 
tall  such  a  one  say  in  a  court  of  justice  to  a  jury,  the  law  is  with 
ic  ;  I  ask  no  mercy  of  you,  I  call  for  justice  :  if  no  man  proves 
e  saw  me  pull  the  trigger  of  that  gun,  the  case  is  not  made  out : 
aless  you  prove  that  I  held  the  gun,  presented  the  muzzle  to  the 
ead  of  my  antagonist,  and  some  one  saw  my  finger  act  upon  the 
igger,  I  claim  my  right  to  go  acquitted  of  the  charge,  and  to  go 
rth  again  to-morrow,  armed  for  destruction,  to  deal  death  at  my 
ensure  ;  and  I  defy  the  vain  efforts  of  man  to  bring  me  to  atone- 
ent  ? 

Gentlemen,  this  is  not  the  misadventure  that  the  law  contem- 
ates.  That  must  be  an  accident  in  the  pure  and  ordinary  accep- 
tion  of  the  word,  growing  out  of  a  lawful  act  or  lawful  pur- 
it,  uncoupled  with  any  intent  of  mischief,  and  where  all  neces- 
ry  caution  has  been  used.  Was  it  then  a  lawful  act  to  pro¬ 
die  an  affray,  commence  it,  continue  it,  and  end  it  with  a  deadly 
eapon  ;  and  when  you  find  the  deceased  slain  with  this  weapon  in 
is  affray,  are  you  to  be  told  it  was  a  lawful  act,  without  intent  of 
idily  harm  ?  For  what  other  purpose  can  you  suppose  than  to  do 
;dily  harm  of  some  kind  to  his  adversary  ?  Where  was  the  due  cau- 
m  that  the  law  requires  ?  The  first  and  best  precaution  would  have 
ten,  to  have  left  his  dagger  at  home  :  and  the  next,  when  he  saw 
)  unsheathed,  was  to  throw  it  from  him,  and  not  continue  to  use  it 
:  rough  the  whole  of  the  conflict,  as  it  is  proved  he  did. 


156 


And  what  is  the  amount  of  this  pretended  accident?  That  th' 
prisoner  held  this  dagger  and  the  deceased  rushed  on  it ;  that  h. 
made  no  use  of  it  but  for  self-defence !  Where  is  the  particle  o 
evidence  that  he  otdy  maintained  his  ground  and  stood  on  self-de 
fence  ?  Not  only  is  there  none,  but  it  is  clearly  proved  that  Mi 
Stoughton  was  the  retreating,  the  prisoner  the  pursuing  party 
that  the  deceased  gave  way,  the  prisoner  pressing  upon  him.  An  l 
if  in  thus  pressing  him,  the  dagger  ran  into  his  body,  1  ask  you  i 
the  name  of  common  sense,  was  that  an  accident? 

But  it  i-  said  he  fell  upon  this  dagger,  or  peradventure  he  fe 
upon  this  dagger.  And  you  are  to  screen  him  from  the  just  punish 
meat  due  to  his  offence,  because  peradventure  it  fell  from  his  hanc 
and  peradventure  the  deceased  fell  upon  its  point?  1  think  this  w; 
matter  for  the  prisoner  to  show,  and  where  is  the  witness  who  pr< 
tends  to  have  seen  this  dagger  on  the  ground  when  Mr.  Stoughto 
fell,  or  at  any  other  time  in  such  a  way  as  that  it  could  penetrate  hi 
body  ?  The  intrinsic  evidence  shows  it  neither  did  nor  could  occu 
that  way. 

I  ask  you,  gentlemen,  if  you  have  doubts  upon  that  subject,  t 
take  this  instrument :  take  it  in  your  hands,  and  try  whether  you  ca 
put  it  in  any  situation  where  it  could  pierce  the  body  of  a  man  fal 
ing  directly  backwards.  There  is  not  only  no  evidence  to  support { 
presumption  so  extravagant,  but  controlling  evidence  of  the  coi 
trary  :  evidence  so  strong  and  cogent,  that  argument  and  dispute 
tion  could  but  weaken  it :  and  which  cannot  be  resisted  unless  vo 
are  pleased  to  let  your  feelings  of  mercy  overshadow  and  obscur" 
your  judgments,  and  breakdown  every  principle  of  law,  which,; 
wise  men  and  goo  1  citizens,  you  should  ever  venerate  and  upholt 
If,  unfortunately,  jurors  should  be  so  far  led  astray  as  to  turn  ash! 
from  ihe  evidence  and  from  the  obligation  of  their  oaths,  to  make 
false  display  of  mercy,  I  can  only  say,  that  what  was  Stoughton 
fate,  may  soon  be  yours  or  mine. 

The  only  evidence  to  give  any  colour  of  support  to  this  strang 
supposition  was,  that  unaccountable  opinion  drawn  from  Doctc 
Mott.  You  must  have  seen  the  glow  of  exultation  which  spread  i 
self  over  the  prisoner’s  countenance,  when  that  w  itness  said  th; 
no  man  of  modern  days  could  have  pow-er  to  inflict  that  wound  ;  a 
opinion  put  down  by  the  experience  of  every  man  who  has  but  con 
mon  sense,  and  knowledge  of  the  use  of  this  or  any  other  instn 
meat,  or  even  of  his  own  limbs.  And  all  the  other  physicians,  ( 
the  most  respectable  in  our  city,  unite  in  saying  that  the  arm  of  a 
ordinary  man,  especially  when  impelled  with  rage,  would  with  thsi 
instrument  penetrate  the  boldest  heart  that  ever  was  enclosed  i 
human  bosom. 

The  evidence,  gentlemen,  has  been  spread  out  before  you  i 
such  deta  l,  and  commented  upon  so  much  at  large,  that  you  cannc 
fail  at  lea;t  to  have  a  good  general  recollection  of  it.  1  shall  finis 
with  a  mo -e  condensed  review  of  it :  which  will  be,  dphink  , enoug 
to  show,  t.iat  if  any  proposition  was  ever  maintained  in  a  court 
justice  by  human  testimony,  so  is  this  :  that  that  wound  could  n(t 


157 


e  inflicted  upon  the  body  of  Mr.  Stoughton  by  means  of  any  acci- 
ent  whatever. 

It  is  proved  that  the  prisoner  commenced  this  affray  with  a 
mdly  weapon  in  his  hand  ;  and  had  no  other  witnesses  been  call- 
1  than  his  friend  Mr.  Cambreieng,  to  whose  regard  for  truth  it  is 
y  duty  to  pay  just  tribute,  his  testimony  would  have  been  conclu- 
ve.  He  shows  that  this  dagger  was  used  by  him — that  after  the 
fray  began,  there  was  some  struggle  to  get  possession  of  it — that 
e  let  go  the  sheath  and  changed  his  hold,  and  took  the  steel  into  his 
o-ht  hand — that  till  that  moment  Mr.  Stoughton  had  the  best  of  the 
fair.  Now  mark  the  fatal  moment  that  changed  the  fortune  of  the 
>mbat.  No  sooner  was  the  dagger  fairly  in  the  prisoner’s  right 
and,  than  it  finds  its  way  into  the  heart  of  the  deceased.  A  blow  of 
10  more  and  he  is  levelled  to  the  earth  to  rise  but  for  a  moment, 
id  sink  again  to  everlasting  rest. 

Mr.  Cambreieng  saw  his  right  arm,  but  he  does  not  tell  you  that 
*  saw  his  right  hand.  Where  then  was  the  difficulty,  covered  as 
;  was  with  capes  down  to  his  elbows,  to  use  the  dagger  and  Mr. 
umbreleng  not  see  it  ?  Mr.  Cambreieng  has  distinctly  informed 
iu,  that  when  standing  on  the  curbstone,  he  could  see  the  right 
;m  of  the  prisoner,  but  that  it  would  be  too  much  to  say  he  saw 
is  hand.  Nor  does  he  pretend  that  his  eye  pursued  him  through 
‘•ery  varying  movement  and  alteration  of  position,  that  must  have 
ken  place  throughout  the  stcnggle.  That,  then, was  the  moment  of 
r.  Stoughton’s  fate,  when  Goodwin  seized  the  dagger  in  his  hand; 
ien  it  was  he  received  his  death  wound  !  The  blows  that  follovv- 
<1  were  but  auxiliary  to  the  blow  that  reached  his  heart :  for.  it  is 
;11  proved  that  they  were  not  of  themselves  sufficient  to  bring  him 
i  the  earth  so  suddenly. 

( Emmet  begged  leave  to  interrupt  the  counsel  a  moment,  con¬ 
niving  that  Mr.  Cambreleng’s  testimony  did  not  altogether  war- 
int  this  statement  or  these  comments,  and  read  from  his  notes 
;d  appealed  to  the  court;  but  the  mayor  observed  that  he  had 
(refully  read  over  Mr.  Cambreleng’s  testimony  as  he  had  minuted 
idown,  and  he  had  agreed  to  its  correctness,  and  it  did  not  vary 
!)m  Mr.  Wells’s  statement.  Mr.  Emmet  referred,  he  said,  to  what 
Jr.  Cambreieng  had  afterwards  spontaneously  said,  which  was  not 
]  rhaps  noted.)  Mr.  Wells  proceeded. 

I  appeal,  gentlemen  of  the  jury,  to  your  own  recollection.  I 
fll  recollect,  and  I  doubt  not  it  made  the  same  impression  upon 
]u,  the  candour  of  that  witness.  His  desire  to  serve  his  friend 
vs  strong,  but  it  was  not  strong  enough  to  conquer  his  integrity  ; 
<  l!  ;he  answers  to  the  questions  asked  him,  were  not  what  were 
fped  for  by  the  gentlemen  who  interrogated  him.  But  had  it 
fjen  otherwise,  supposing  he  could  all  the  time  have  seen  the 
f  soner’s  right  hand,  if,  as  they  say,  the  prisoner  threw  away  the 
dgger,  where  were  his  eyes  and  ears  that  neither  saw  nor  heard  it? 
Nor  does  Mr.  Cambreieng  stand  alone  in  this.  He  is  confirmed 
t  four  or  five  others,  all  speaking  to  the  same  effect,  that  he  held 
t?i  dagger  and  continued  the  conflict  with  it  until  Mr.  Stoughton 


138 


fell.  Then  you  must,  before  you  can  acquit  the  prisoner,  be  will 
ling  to  believe  that  just  as  the  deceased  was  falling  the  dagger  slip  * 
ped  out  of  the  prisoner’s  hand  in  such  a  manner  as  to  combine  mi 
raculou.-ly  with  the  fall,  and  cause  the  death.  But  if  you  are  ob 
servant  of  your  duty  and  attentive  to  the  evidence,  as  I  know  yoi  i 
are,  you  will  find  that  from  indulging  in  such  conjecture  you  ar 
absolutely  and  utterly  precluded. 

Witnesses,  whom  you  cannot  disbelieve,  have  sworn  to  you  tha 
when  the  deceased  lay  on  the  ground,  this  dagger  remained  still  i 
the  prisoner’s  hand  :  that  even  when  the  most  angry  passion  migb 
have  been  appeased  ;  the  most  malignant  vengeance  glutted  ;  a  fe» 
moments  of  life  remaining  ;  a  few  short  moments  yet  to  pass  an 
he  to  be  no  more,  you  find  that  prisoner  using  it  inhumanly  upo 
•  he  head  and  face  of  his  prostrate  adversary  !  And  now'  they  ar 
driven  to  their  last  entrenchment.  They  say  if  he  did  not  let  it  g< 
but  still  held  it  fast,  Mr.  Stoughton  must  have  fallen  upon  it  whe 
it  was  in  his  hand.  This  i3  what  you  must  believe  before  you  C3 
acquit.  You  are  brought  to  this,  and  it  is  the  only  ground  on  wliic 
it  is  now  possible  for  you  to  rest  a  verdict  of  acquittal  ;  for  since  h 
held  the  dagger  at  the  moment  of  the  prisoner’s  fall  and  at  the  m< 
xnent  he  rose,  it  is  trifling  too  far  with  justice  to  say  it  ever  was  ot 
of  his  grasp.  And  I  refer  you  confidently  to  the  witnesses  wh 
have  sworn  that  he  not  only  held  it  at  that  moment  when  he  fel 
but  that  he  had  it  and  used  it  too  when  he  was  down,  and  had  it  als 
at  the  moment  when,  with  the  aid  of  some  kind  stranger,  he  ros  ■ 
again,  and  finally  when  he  swooned  away  never  to  look  on  his  d>  , 
stroyer  more,  when  that  tongue  that  could  have  silenced  all  coi 
jectures  was  silenced,  and  forever. 

And  will  you  push  this  supposition  so  far,  as  that  he  held  th 
weapon  whilst  it  killed  a  man,  and  was  unconscious  of  what  he  w 
doing  with  it  ?  for  if  that  be  not  what  the  counsel  mean,  it  is  sonr 
tiling  bordering  upon  it,  though  the  ground  was  rather  too  bold  1 
be  openly  maintained.  In  a  word,  gentlemen  of  the  jury,  can  yc 
doubt  that  the -deceased  came  to  his  death  by  that  dagger,  wield( 
by  the  hand  and  arm  of  the  prisoner  at  the  bar  ?  That  his  fixi 
determination  from  the  first  was  to  kill,  I  will  not  take  upon  me  > 
pronounce  ;  but  that  he  did  provoke  the  conflict,  and  use  tl 
deadly  weapon,  and  that  by  means  of  it  Mr.  Stoughton  came  b)1  h 
death,  are  facts  about  which  there  is  nor  can  be  no  dispute.  B  r 
if  you  give  ear  to  the  strains  of  fervent  and  impassioned  eloquent 
in  which  the  prisoner’s  counsel  have  declaimed,  you  may  as  wt}j 
believe  there  was  no  dagger,  that  it  is  but  delusion,  prejudice,  ai 
calumny  ;  that  Stoughton  never  was  stabbed,  but  is  still  living, 
say  it  ns  the  true  conviction  of  my  own  senses,  that  it  would  be  i  j 
less  violent  to  say  there  was  no  dagger  used  at  all,  than  to  say  ■ 
was  not  in  Mr.  Goodwin’s  hands  when  it  caused  the  death  of  tl 
deceased.  Three  witnesses  at  the  least  have  sworn  that  they  s? 
it :  and  in  the  face  of  all  this  testimony,  with  every  circumstan  1 
to  give  it  confirmation,  you  are  asked  to  substitute  for  truth  •* 
palpable,  conjectures  incredible,  if  not  impossible. 


159 


If  he  had  fallen  upon  it  and  been  transfixed  by  it,  it  would  have 
:mained  in  his  body  at  least  as  long  as  he  lay  upon  his  back  ;  it 
>uld  not  have  fallen  out  until  he  was  raised  Irom  the  ground  ; 
here  was  it  then  ?  How  did  it  comeback  into  the  prisoner’s  hands 
ever  it  was  out  ot  them  ? 

Mr.  Weed  alone,  and  he  is  the  least  distinct  of  all  the  witnesses, 
ys  he  saw  the  dagger  on  the  ground  at  some  little  distance  from 
e  deceased,  when  he  was  down.  If  this  were  so,  it  is  equally 
tal  to  the  hypothesis  that  the  deceased  tell  on  it,  since  the  dullest, 
.prehension  will  perceive  that  it  must  have  continued  in  his  body 
:  least  till  he  rose  up. 

But  no  witness,  you  are  told,  has  given  evidence  of  the  blow'  that 
lied  the  deceased  :  and  you  must  acquit  the  prisoner,  for  he  is 
<iar°ed  with  killing  by  a  blorv,  and  you  have  not  proved  that  blow. 
.re  we  to  bind  fact  to  fact  by  links  of  steel  ?  Will  nothing  serve 
it  adamantine  chains  ?  Are  you  to  make  that  ungrateful  return  for 
; at  precious  gift  of  reason  which  your  God  has  given  you,  that 
mi  will  not  use  that  reason,  that  you  will  not  compare,  that  you 
‘,11  not  combine,  that  you  will  adopt  conjectures,  however  extra- 
igant,  rather  than  draw  conclusions  the  most  obvious  and  inevi- 
tde?  If,  gentlemen,  you  sanction  this  doctrine,  that  nothing  shall 
!  proof  of  manslaughter  but  direct  evidence  of  the  immediate 
bw,  you  blot  a  great  part  of  your  criminal  jurisprudence  out  of 
jur code. 

And  for  what  are  you  thus  called  upon  so  earnestly  to  surrender 
Mir  reason  and  your  judgment,  and  to  tamper  with  your  conscience 
rd  your  oaths?  Because,  forsooth,  the  punishment  of  killing  a 
flow-creature,  and  a  fellow-citizen,  is  too  great  tor  the  oflenee — 
tit  it  is  disproportioned,  because  it  is  humiliating  and  degrading : 
ad  therefore  a  jury  is  to  dispense  with  the  law  and  follow  a  new 
ce  of  their  own  making.  It  is  then  in  vain  that  we  have  laws  ;  in 
v  n  that  we  have  juries  and  judges  sworn  to  administer  the  law,  if 
t:  mere  caprice  of  a  jury  is  to  countervail  the  solemnity  ot  the 
hv,  leave  guilt  to  triumph  with  impunity  in  a  commonwealth  em- 
patically  called  the  country — the  government  of  law — whose  pe- 
c  iar  boast  and  happiest  privilege  is  the  universal  security  and 
pitection  of  the  law.  The  law  is  that  which  guards  your  lives, 
al  watches  over  your  liberty,  your  fortune,  and  your  honour.. 
A d  if  you  have  any  interest  more  precious  than  another,  the  law 
a  uresyou  the  free  enjoyment  of  it.  And  will  yon  trample  on  it, 
oijwill  you  reverence  and  maintain  it  ?  If  the  punishment  of  this 
o  mce  be  too  severe,  the  legislature  of  the  state  must  alter  that. 

I  there  be  hardship  in  the  particular  case,  the  governor  may  miti- 
g  2  the  punishment,  or  pardon  altogether.  But  every  rational  mo- 
ti : ,  every  moral  tie,  and  every  binding  sanction  of  religion,  imposes 
oyou  the  duty  to  carry  the  law  into  its  full  and  due  effect. 

•  shall  now,  gentlemen,  conclude.  I  proposed  to  myself  no 
naVe  than  to  present  to  you  a  brief  and  simple  view  of  the  true 
hints  of  this  cause — which  1  think  is  enough  to  ensure  the  con  - 
1  Vi  ion  of  the  prisoner  beyond  the  possibility  of  escape.  And  I 


160 


sincerely  hope  I  have  brought  you  with  me  to  the  same  conclusn 
It  is  not  from  any  vindictive  teeling  towards  that  man  that  I  say  tl 
I  can  conceive  his  situation.  I  can  imagine  the  sorrow  and  c< 
trition  of  his  heart,  if  he  has  a  heart  capable  of  any  feelings 
contrition.  He  has  entered  deeply  into  the  happiness  of  tin 
who,  but  for  his  intemperate  conduct,  to  call  it  by  no  bars! 
name,  had  still  been  happy  ;  but  whose  affliction  is  now  beyc 
all  earth!}'  cure.  You  owe  it  to  your  country  to  punish 
offender,  if  he  be  guilty.  You  owe  it  to  the  peace  and  hone 
of  your  city,  if  he  has  been  a  violator  of  your  law  and  a  c 
turber  of  }*aur  peace.  You  owe  it  to  your  families,  to  vi 
friends,  and  to  yourselves.-  The  midnight  assassin  may  be  avoii 
by  the  precaution  of  staying  within  doors,  but  nothing  but  i 
certainty  of  punishment  and  the  efficacy  of  the  law  can  prott 
you  from  the  stiletto  brandished  in  open  day.  And  distress 
as  the  case  may  be  to  the  guilty  individual,  or  to  those  connec 
with  him,  it  would  be  more  distressing  to  the  community  a  nr 
the  peaceful  citizens,  that  an  offence  so  enormous  should  go  • 
terly  unpunished.  Still,  gentlemen,  if  you  can  find  any  groil 
of  reason,  which  I  cannot,  to  doubt  of  the  guilt  of  the  pi  iso  | 
at  your  bar,  why  then  acquit  him.  But  let  it  not  be,  1  besci 
you,  from  a  false  sentiment  of  mercy  ill  applied;  nor  from 
rash  encroachment  on  the  office  of  other  constituted  authorit  , 
equally  acknowledged  by  our  law  and  constitution  ;  nor  fn 
an  unbecoming  disposition  to  make  the  law  rather  than  to  fol  i 
and  observe  it.  If,  l  repeat  it,  gentlemen  of  the  jury,  you  I 
in  the  evidence  enough  to  satisfy  your  reason  and  convince  ya r 
judgment  that  the  prisoner  is  guilty,  1  do  entreat  you  by  all  the  ll< 
lowed  ties  that  1  have  mentioned,  let  no  consideration  but  that  of  dj 
sway  you  ;  let  nothing  induce  you  to  defeat  the  ends  of  justice  ! 
prevent  the  uplifted  arm  of  the  law  from  failing  on  the  guilty  mil 

(At  the  close  of  Mr.  Wells’s  speech  there  was  some  movetrl 
of  applause  and  clapping  of  hands,  as  there  had  been  before  at  < 
conclusion  of  Mr.  Emmet’s,  but  it  was  instantly  repressed  byH 
authority  of  the  court.  'Before  the  mayor  proceeded  to  deli:i 
his  charge,  Mr.  James  Glass  stated  that  there  was  some,  differed 
amongst  the  jury  as  to  Mr.  Clark’s  testimony,  w  hether  it  was,  d 
the  prisoner  had  knocked  the  deceased  down  with  his  hand  merp 
or  whether  he  had  any  thing  then  in  his  hand.  The  mayor  nc 
that  part  of  the  testimony  over,  and  then  proceeded  to  charge M 
jury  to  the  following  effect  :) 

CHARGE  OF  HIS  HONOUR  THE  MAYOR. 

The  Mayor  said  that  he  should  at  all  times  rise  to  charge  a_rj 
in  a  cause  of  this  nature  with  the  greatest  concern.  But  in  iii 
case,  after  a  triad  which  had  lasted  five  days,  and  after  having  <t 
been  on  the  bench  nearly  fifteen  hours,  he  could  not  but  fee!  g*i 
apprehensions  as  to  his  powers  to  discharge  the  arduous  task  isl 


161 


gained  to  him.  That  a  consideration  of  the  fatigues  of  the  jury, 
iweil  as  his  own,  would  induce  him  to  observe  all  the  brevity  con¬ 
tent  with  his  duty.  He  would  not  trust  himselt  for  a  moment  to 
[Vert  to  the  particular  circumstances  on  the  one  side  or  the  other, 
iich  had  rendered  this  case  so  interesting  to  the  jury,  the  court, 
t!  to  the  multitude,  which  had  da)'  and  night  crowded  the  hall. 

The  prisoner  at  the  bar  was  indicted  for  manslaughter.  The 
I iaition  of  this  crime  was  unlawfully  killing  a  human  being  with- 
>  malice  either  expressed  or  implied, 
t  must  be  observed,  that  this  definition  excludes  the  necessity  of 
1  killing  being  wilful.  Nor  does  the  word  wilful  appear  in  the 
I  iuition  of  manslaughter,  in  any  book  or  authority  that  has  been 
vd,  except  in  the  charge  of  Chief  Justice  Parker  of  Massachusetts, 
r  lie  case  of  Selfridge,  who  was  tried  before  him,  on  a  charge  of 
ring  feloniously  killed  young  Austin.  But  it  is  not  doing  justice 
.the  acknowledged  ability  and  learning  of  Chief  Justice  Parker, 
c  onsider  him  as  giving  in  this  instance  an  abstract  definition  of  the 
;ine  of  manslaughter.  In  that  case  there  was  no  question  as  to 
killing  having  been  wilful;  it  was  acknowledged  to  have  been 
ic  The  accused,  when  the  deceased  made  an  attack  upon  him; 
dt  Austin  with  a  pistol,  wilfully  discharged,  with  an  intent  to  kill, 
jnt  least  to  wound  :  and  the  defence  was,  that  the  accused  was 
?? usable  in  doing  so,  because  it  was  necessary  for  his  self-defence. 
Wether  the  killing  must  be  wilful  or  not  to  constitute  the  crime  ol 
mslaughter,  was  not  in  that  case  argued  by  the  counsel  or  pre- 
!eled  to  the  consideration  of  the  court.  We  may  therefore  con- 
i«  r  the  judge  as  giving  a  definition  of  the  crime  as  applicable  to 
hi  particular  circumstances  then  in  controversy,  and  not  an  ab- 
it  ct  definition  that  should  be  applicable  to  all  cases.  Or  in  other 
.v  ds,  we  rnay  suppose  the  Chief  Justice  as  giving  the  jury  all  the 
n  rmation  it  was  necessary  for  them  to  have  in  such  case,  as  to  the 
laire  of  the  .crime.  He  therefore  tells  them  that  unlawfully  and 
vfully  to  kill  is  manslaughter:  but  we  never  can,  in  opposition  to 
:vry  other  authority,  and  to  every  author  who  has  given  us  an  ab- 
tr:t  definition  of  manslaughter,  suppose  that  the  judge  meant 
o -e  understood  that  a  party  could  not  in  any  case  be  convicted 
This  crime,  unless  he  had  an  intention  to  kill.  It  is  true,  the 
vi  of  the  party,  in  most  instances,  must  necessarily  co-operate 
n  he  perpetration  of  the  crime.  That  is,  the  act  which  is 
hi  mediate  cause  of  the  death,  must  generally  be  a  wilful  act ; 
>u  if  that  act  was  unlawful,  the  party  may  be  guilty  of  nmn- 
laghter,  though  death  or  even  bodily  harm  was  not  intended. 
Si  to  say  as  has  been  said  by  the  prisoner’s  counsel,  that  the  lm- 
nciate  net  which  occasions  the  death,  must  in  all  cases  be  volun- 
|i  to  constitute  the  crime  of  manslaughter,  I  am  sure  is  a  mistake, 
’o  suppose  the  pistol  of  a  burglar,  while  he  is  robbing  a  house, 
hi  Id  be  accidentally  and  involuntarily  discharged,  and  thereby  one 
«  e.  inhabitants  of  the  house  be  killed,  can  it  be  doubted  but  that 
|i  would  be  a  felonious  homicide  ? 

21 

■1  /  %■ 


i  62 


The  authority  of  Chief  Justice  Parker  has  been  so  much  rei  f 
upon  and  so  earnestly  pressed  on  your  consideration  by  the  coun| 
tor  the  prisoner,  that  I  have  thought  proper  thus  far  to  notice  it • 
this  early  stage  of  my  address  to  you,  though  it  is  not  my  intent  (j 
just  now  to  direct  your  attention  to  the  law  of  homicide,  necessaiJj 
involved  in  the  verdict  you  are  to  pronounce.  1  shall,  in  theseqij 
again  refer  to  the  case  of  Selfridge.  1  think  you  will  better  undid 
stand  my  observations  on  the  law  of  this  case  when  you  shall  h  i 
heard  those  I  mean  to  offer  to  you  on  the  evidence. 

To  support  this  indictment,  the  death  of  the  person  alleged! 
have  been  killed,  must  be  proved  :  and  it  must  be  proved  that* 
was  killed  by  the  instrumentality  of  the  prisoner  at  the  bar,  p 
means  at  least  of  the  nature  of  those  charged  in  the  indictment. 

As  to  the  first  point,  it  is  not  necessary  that  1  should  detain  yu 
moment.  It  is  too  true  that  the  unfortunate  Stoughton  is  no  mor< 

The  next  question  is,  when  and  how  did  he  come  by  his  deatl 

I  shall  not  attempt  to  recapitulate  particularly  the  testimony  oft 
many  witnesses  who  have  been  examined,  or  to  assist  you  in  J 
deavouring  to  reconcile  the  many  apparent  contradictions  of  « 
witnesses.  They  seem  calculated  to  shake  our  faith  in  all  human  ► 
limony.  I  am  sensible  that  1  have  not  now  strength  for  a  task  wlh 
would  require  so  much  time  and  labour.  Were  1  to  endeavouio 
perform  it,  I  fear  my  omissions  or  mistakes  might  do  injustice  to  t 
one  side  or  the  other. 

I  shall,  therefore,  only  ask  your  attention  to  certain  promiril 
facts,  which  I  think  may  be  considered  as  incontestibly  pro'll 
They  are  testified  by  most  of  the  w  itnesses,  and  are  not  posith.ji 
or  affirmatively  contradicted  by  any. 

It  is  proved  by  the  testimony  of  Major  Smith,  that  the  prise » 
possessed  himself  of  the  fatal  weapon  the  evening  before  his  meal 
rencounter  with  the  deceased.  That  at  the  earnest  solicitation 
the  prisoner,  the  witness  gave  it  to  him  in  exchange  for  a  ue 
that  the  prisoner  before  carried,  which  had  no  sword  in  it.  II 
testimony  was  introduced  on  the  part  of  the  prosecution,  unq  $• 
tionably  to  show  that  the  prisoner  had  premeditated  an  affray  ■ 
the  deceased,  and  had  armed  himself  w  ith  this  instrument  wi  I 
view  to  it.  But  the  testimony  of  Major  Smith  is  in  opposition 
such  an  inference.  He  says  the  prisoner  was"  going  to  Baltin* 
the  next  day,  or  soon  thereafter  :  and  that  he  expressed  a  desiil 
have  it  from  the  witness  as  a  keepsake.  In  the  absence  of  alia 
timony  to  the  contrary,  we  are  bound  to  believe  he  had  no  o« 
motive.  And  the  affray  and  the  obtaining  of  the  weapon  ann» 
otherwise  connected  than  in  point  of  time.  I  only  advert  to  ■ 
corroborative  evidence  of  what  has  been  show  n  by  the  lestinnjf 
of  several  other  w  itnesses,  that  is  to  say,  Carnbreleng.  Weed  Ofl 
M‘Gowan,  that  the  prisoner  had  the  weapon  in  his  hands  imiidij 
ately  before,  and  at  the  commencement  of  the  affray,  the  lVi.il 
the  prisoner  after  he  saw'  that  the  dagger  had  w  ith  the  first  I  % 
been  forced  partly  out  of  the  cane,  either  drew  off  the  sheaf  W 
suffered  it  to  fall  off,  and  took  the  blade  in  his  hand,  has  beeudf 


163 


ii'ted  to  by  the  counsel  on  both  sides.  It  will  evidently  admit  of 
■o  interpretations  :  it  may  either  be  considered  as  indicating  a 
ution  in  the  prisoner  to  guard  against  the  mischief  likely  to  en- 
:e,  if  he  had  continued  to  use  it  as  he  then  held  it ;  or  it  may  be 
:cen  as  indicating  a  design  in  the  prisoner  the  more  effectually  to 
ail  himself  of  this  mortal  weapon.  I  shall  leave  the  jury  to  draw 
: eir  own  conclusions  from  what  they  may  recollect  of  the  testi- 
;iny  in  this  point.  It  must  be  remembered,  that  Mr.  Weed  testifies 
iry  positively  that  the  sheath  flew  off  by  the  force  of  the  first 
bw. 

It  is  also  proved  by  the  testimony  of  those  three  last  named  wit- 
rsses,  and  also  by  the  testimony  of  most  of  the  other  witnesses  in 
l>  cause,  and  certainly  by  the  testimony  of  Weir,  Haycock,  Ball, 
al  Phelps,  that  tiie  prisoner  used  the  cane  either  sheathed  or  un¬ 
scathed,  during  the  affray  and  up  to  the  moment  when  the  deceased 
fil  the  first  time. 

And  lastly,  it  is  proved  by  several  of  the  witnesses,  that  after  the 
d;eased  fell  the  first  time  and  had  risen,  or  been  raised  by  the 
aistance  of  the  bystanders,  the  prisoner  had  the  dagger  unsheathed 
n  his  hand.  After  the  deceased  had  tainted,  Mr.  Leonard  Baker 
s;y  the  prisoner  looking  at  the  dagger,  he  thought,  with  much  sur- 
pse,  and  thinks  he  saw  him  throw  it  away,  or  give  it  away.  Mr. 
V'irsaw  him  have  it  in  his  hand,  and  heard  him  say,  “1  did  not 
rx an  to  draw  this.”  Mr.  Ball  saw  the  prisoner  swinging  the  sword- 
ci  e  between  his  thumb  and  finger  after  the  deceased  had  fallen. 
A.  Clark  saw  the  weapon  in  the  hand  of  the  prisoner,  while  he 
vvs  standing  between  him  and  the  deceased,  immediately  after  he 
a  separated  them  and  the  deceased  had  risen.  He  did  not  see 
tl  sword  or  cane  in  the  hand  of  the  prisoner  at  the  commence- 
mat  of  the  affray  or  during  its  continuance.  Indeed,  according  to 
in  testimony,  we  could  hardly  believe  that  the  prisoner  had  this 
svjfrd  in  his  possession  at  the  onset,  because  Mr,  Clark  says  he  gave 
tb  blow  which  knocked  the  deceased  down  with  his  right  fist.  We 
alknow  the  high  respectability  of  Mr.  Clark,  and  how  impossible 
it  that  he  can  intend  to  represent  any  thing  otherwise  than  as  he 
breves  to  be  true.  He  supposes  that  he  saw  all  that  passed  from 
h  very  commencement  to  the  end  of  this  unhappy  rencounter. 

\  it  is  manifest  that  he  did  not,  or  Mr.  Weed,  Mr.  Cambreleng, 
M  M‘Gowan,  and  most  of  the  other  witnesses,  must  be  mistaken, 
injed  it  must  be  very  unfavourable  to  the  prisoner  to  suppose  that 
M  Clark  cannot  be  mistaken  as  to  the  commencement  of  the 
athy,  for  if  he  were  not,  then  the  prisoner  commenced  the  affray 
by i  violent  and  totally  unjustifiable  assault  and  battery  on  the  de¬ 
eded. 

here  is  one  part  of  the  transaction  to  which  there  is  a  contra- 
ci« /  in  the  testimony  of  the  witnesses,  and  that  is  as  to  the  prison¬ 
er  having  beat  the  deceased  about  the  head  with  the  but  end  of 
thfdagger  after  the  deceased  fell  the  first  time.  This  is  a  matter 
svlbh,  if  you  should  think  it  important  to  your  final  decision,  1 
ih;  leave  entirely  to  your  consideration  and  determination. 


164 


From  tlte  testimony  on  these  points,  anil  from  that  to  whic! 
shall  presently  more  particularly  direct  your  attention,  you  w 
have  to  decide,  if  you  should  think  it  necessary  for  you  to  do  < 
whether  the  deceased  received  his  mortal  wound  from  a  bit 
with  the  dagger  voluntarily  given  by  the  band  of  the  prisoi 
during  the  allray,  or  whether  the  deceased  was  accidentally  press 
upon  the  dagger  while  the  parties  were  up  and  the  contest  ci 
tinned  ;  or  whether  in  consequence  of  the  prisoner’s  having  drt 
ped  or  thrown  away  the  dagger  before  the  deceased  was  knocli 
down,  the  deceased,  by  a  blow  or  violence  from  the  prisoner,  i 
upon  the  dagger  and  so  received  the  mortal  wound. 

It  is  my  painful  duty  to  say,  that  if  you  come  to  a  conclusion  t 
the  death  of  the  deceased  was  occasioned  by  either  of  these  me; 
or  in  either  of  these  ways,  you  may  tind  the  prisoner  guilty  of  • 
crime  of  which  he  is  accused.  '  Whether  the  death  occurred  ini 
or  other  of  the  w’ays  I  have  mentioned,  is,  as  to  the  question  w! 
ther  the  killing  be  manslaughter  or  not,  in  my  judgment,  tot; 
immaterial. 

Whether  the  prisoner  intentionally  planted  the  dagger  in 
heart  of  his  adversary,  or  whether  the  deceased  came  by  his  del 
by  being  cast  on  the  dagger  by  the  prisoner,  w  ithout  any  design  i 
his  part  to  inflict  a  wound,  unquestionably  makes  a  vast  cl  i  tie  re ; ; 
as  to  the  moral  guilt  of  the  prisoner ;  and  so  it  does  as  to  his  lei 
guilt.  For  if  lie  intentionally  stabbed  the  deceased  under  the  <■ 
cumslances  of  this  case,  then,  gentlemen,  he  is  undoubtedly  guf 
of  murder.  It  is  only  the  supposed  want  of  this  evil  and  felonis 
intention  that  could,  under  the  circumstances  presented  by  a 
testimony  we  have  heard,  have  mitigated  the  accusation  to  that  f 
manslaughter. 

1  feel  myself  bound  to  say,  that  the  opinion  I  give  that  the  j- 
soner  may  be  guilty  of  manslaughter,  although  the  deceased  rj 
have  received  the  mortal  wound  in  one  or  other  of  the  ways  1  be 
mentioned,  is  an  opinion  in  which,  after  all  the  research  and  coi- 
deration  1  am  capable  of,  1  give  with  confidence.  I  do  not  n  d 
with  an  assurance  that  1  cannot  be  mistaken,  but  I  use  this  leno 
signify  to  you  that  now  there  are  no  doubts  in  my  mind  on  the  m- 
ject.  If  1  were  to  tell  you  that  1  had  doubts  when  1  harbonl 
none,  it  would  be  as  criminal  as  if  I  were  to  advise  you  that  ft 
law  was  one  way  when  I  believed  it  to  be  another. 

I  shall  yet  forbear  to  present  to  your  consideration  the  view  lh 
tend  to  offer  you  of  the  law  applicable  to  this  case.  I  shall  f't 
merely  premise, that  the  question  whether  the  prisoner  has  bft 
guilty  of  manslaughter  or  not,  may  depend  upon  your  deriuj 
whether,  when  the  mortal  wound  was  received,  the  prisoner  at 
acting  lawfully  or  unlawfully.  This  will  necessarily  lead  to  ae- 
view  and  consideration  of  the  circumstances  of  the  case  in  s  ;e 
detail  and  with  some  particularity. 

But  here  again  I  shall  avoid  adverting  to  any  facts  as  to  wl:b 
I  think  it  can  be  justly  said  there  is  any  positive  contradiction  I 
mean  to  refer  only  to  the  testimony  of  Mr.  Cnmbreleng,  and  Ijh 


165 


o  such  material  facts  of  his  testimony  as  are  corroborated  by  other 
vitnesses.  It  is  true  that  he  was  called  on  the  part  of  the  prosecu- 
ion,  but  it  is  obvious  that  he  was  the  friend  or  intimate  of  the 
wisoner.  It  is  also  obvious  that  the  affray  was  not  a  matter  for 
vhieh  he  was  so  entirely  unprepared  as  the  other  witnesses  evi- 
ently  were.  The  expression  he  used,  and  those  he  heard  from 
he  prisoner  before  any  blows  were  given,  must  have  led  him  to  ex- 
>ect  an  affray.  We  must  therefore  believe  that  he  observed  what 
assed  with  more  attention  and  calmness  than  any  other  witness, 
tnd  I  must  add,  gentlemen,  that  the  candid,  cautious,  and  consist- 
ut  manner  in  which  Mr.  Cambreleng  has  delivered  his  testimony, 
vill,  1  presume,  impress  you,  as  it  has  me,  with  a  perfect  confidence 
hat  he  means  to  represent  what  he  believes  to  be  the  truth. 

He  states  that  between  two  and  three  o’clock  of  the  afternoon  of 
1st  of  December  last,  he  and  the  prisoner  left  the  City-Hotel 
i  Broadway,  where  the  prisoner  lodged,  to  take  a  walk.  That 
ley  walked  up  as  far  as  Park  Place,  and  then  went  back.  That 
men  they  had  arrived  near  the  upper  or  northwardly  side  ofCourt- 
mdt-street,  the  witness  perceived  Mr.  Stoughton  below  Court- 
mdt-street,  coming  up  on  the  same  westwardly  side  of  Broadway, 
n  which  the  witness  and  the  prisoner  were  walking  down.  That 
re  witness  said  to  the  prisoner,  there  is  your  friend  Stoughton,  or 
ou  will  meet  your  friend  Stoughton,  (meaning  his  enemy,  or  at 
;ast  his  adversary  no  doubt)  or  words  to  that  effect.  That  they 
'ere  then  forty  or  sixty  yards  from  the  deceased.  The  witness 
as  walking  on  the  inside  next  thefiouses,  and  the  prisoner  by  him 
n  the  outside.  That  the  prisoner  took  no  notice  of  what  the 
itness  said  to  him  ;  but  when  the  deceased  and  the  prisoner  had 
rrived  within  about  six  yards  of  each  other,  the  prisoner  lifted  his 
me,  not  in  a  threatening  manner  as  if  he  was  going  to  strike,  but 
mrnfully  pointing  the  small  end  at  the  deceased,  and  said,  “  there 
res  a  coward  and  a  scoundrel,”  or  words  to  that  effect.  That  the 
jeceased  took  no  notice  of  this,  but  continued  his  course  till  he 
ime  on  a  line,  or  nearly  so,  with  the  prisoner  and  the  witness, 
hen  the  prisoner  again  raised  his  cane  in  the  same  w'ay,  and  re¬ 
lented  the  same  words,  “  there  goes  a  cowmrd  and  a  scoundrel.” 
he  deceased  passed  on  about  two  paces,  and  then  turned  and 
une  towards  the  prisoner.  The  prisoner  turned  and  faced  him. 
he  witness  fearing  an  affray,  to  prevent  it,  took  the  prisoner  by 
ie  sleeve,  and  desired  him  to  go  with  him,  or  to  go  off,  or  to  that 
feet.  The  prisoner  turned  to  do  so  ;  the  deceased  followed 
em,  and  when  they  had  moved  a  few  feet,  the  deceased  came  up 
the  prisoner,  accosted  him,  and  asked  him  if  he  would  repeat  his 
ords  ;  to  which  the  prisoner  answered,  “  I  will  :”  upon  this 
e  deceased  made  a  blow  at  the  face  of  the  prisoner  which  took 
feet  on  his  shoulder.  The  parties  had  at  this  time  reached  the 
wer  or  southerly  side  of  Courtlandt-street,  and  were  on  the  side- 
alk,  near  the  curbstone,  at  the  corner  of  Weed’s  store,  which 
rms  the  southwest  corner  of  Courtlandt-street  and  Broadway', 
pon  receiving  the  blow  from  the  deceased,  the  prisoner  return- 

|  . 


1(56 


ed  it  by  a  blow  with  the  but  end  of  the  swordcane  at  the  head  oi 
the  deceased.  The  prisoner  had  the  cane  in  his  right  hand,  an* 
held  it  by  that  part  which  made  the  scabbard  of  the  sword.  As  th< 
stroke  was  made  with  the  swordcane,  the  sword  flew  out  so  at 
to  show  some  part,  three  or  four  inches  of  the  blade.  The  exposure 
of  the  blade  seemed  to  attract  the  attention  of  both  the  combatants 
The  prisoner  then  took  the  hilt  or  handle  of  the  swordcane  in  hie 
left  hand,  and  having  let  go  the  scabbard  which  he  had  held  in  hi< 
right  hand,  the  scabbard  came  off ;  the  witness  supposed  it  droppec 
off  vvheu  the  prisoner  let  go  his  hold  of  it.  The  prisoner  then  shiftei 
the  sword  from  his  left  to  his  right  hand,  taking  it  in  his  right  hant 
by  the  blade  near  the  hilt  or  handle,  so  that  the  point  and  a  grea 
part  of  the  blade  was  below  his  hand  ;  while  the  prisoner  was  doinj 
this,  the  witness  thinks  the  deceased  gave  the  prisoner  severs 
blows,  but  of  this  he  would  not  speak  with  certainty.  He  spoke  h< 
said  as  to  this  fact,  rather  as  of  an  inference  which  he  drew  fron 
the  situation  of  the  parties,  than  from  any  positive  recollection 
As  soon  as  the  prisoner  had  taken  the  sw'ord  by  the  blade  with  hi; 
right  hand,  he  struck  the  deceased  over  the  head  with  the  butt  01 
handle.  The  first  blow  the  deceased  received  from  the  cane  it 
this  way,  caused  him  to  give  back,  so  that  he  stood  with  one  foo 
down  on  the  street  or  carriage  way,  and  the  other  resting  on  the 
curbstoue  at  the  corner.  The  prisoner  continued  to  strike,  ane 
gave  the  deceased  several  blow's  with  the  head  of  the  sword  in  the 
same  way  ;  and  the  deceased  to  retreat  about  eight  paces,  till  he 
arrived  nearly  at  the  middle  of  Courtlandt-street,  and  rather  it 
Broadway,  when  he  fell.  The  prisoner  at  the  same  time  wat 
in  an  incumbent  posture  over  him.  He  seemed  partly  to  fall,  bu 
did  not  lose  his  balance,  and  was  not  off  his  feet.  The  witness 
till  this  time  remained  on  the  sidewalk,  on  the  southerly  side  o  , 
Courtlandt-street,  and  as  the  parties  went  from  him,  the  distanct  i 
between  them  and  him  was  increased,  and  he  could  not  so  well  $e< 
what  passed.  As  the  deceased  retreated,  he  made  use  of  his  hands 
not  only  to  ward  off  the  blows,  but  offensively,  and  to  strike  tht  | 
prisoner,  and  manifested  no  intention  or  desire  to  give  up  the  con 
test  previously  to  his  fall. 

When  the  deceased  had  fallen,  and  the  prisoner  was  over  him  it 
the  incumbent  posture  described,  the  witness  went  up  to  them  with 
an  intention  to  separate  them.  But  going  up  directly  behind  th< 
prisoner,  who  had  on  a  box  coat  with  large  capes,  he  could  no 
well  see  what  was  passing  on  the  ground.  He  saw  no  dagger  in  tht 
hand  of  the  prisoner.  To  say  he  saw  the  hand  of  the  prisoner  a 
this  time,  would  be  too  particular,  it  might  have  been  concealed  b\ 
the  capes  of  the  prisoner’s  coat ;  but  he  is  certain  that  he  saw  hi; 
right  arm,  and  does  not  think  he  could  then  have  been  using  the 
sword  or  dagger  in  any  way.  Mr.  Cambreleng  further  stated,  tha 
he  had  a  vague  impression  that  about  a  minute  after  the  deceaset 
fell,  he  saw  some  one  pick  up  the  dagger  and  hand  it  to  the  pri 
>oner. 


167 


Mr.  Cambreleng  also  states,  that  in  the  first  of  the  affray,  and  wuue 
he  prisoner  was  changing  the  dagger  from  the  one  hand  to  the 
ther,  lie  thought  also  he  had  the  best  of  the  battle  ;  but  af- 
erwards,  and  as  soon  as  the  prisoner  began  to  use  the  butt  of  the 
ane,  it  appeared  to  him  that  the  prisoner  had  decidedly  the  ad- 
antage,  not  because  he  was  stronger  in  person  than  the  deceas- 
d,  they  were  nearly  of  equal  strength,  but  because  the  prisoner 
eemed  to  know  more  about  it. 

It  is  a  rule  of  law,  founded  upon  reasoning  which  must  be 
bvious  to  every  one,  that  witnesses  swearing  affirmatively  may 
e  believed,  although  they  should  be  opposed  by  a  greater  number 
f  witnesses  equally  entitled  to  credit,  swearing  negatively  ;  or  in 
ther  words,  where  a  person  swears  positively  that  a  fact  did  exist, 
e  may  be  believed,  though  many  other  witnesses  may  swear  they 
id  not  see  it.  There  are  abundant  instances  in  this  case  for  the 
pplication  of  this  rule.  Take  for  example  the  testimony  of  Mr. 
'lark,  to  which  I  have  before  adverted.  He  did  not  see  the  first 
low  given  by  the  deceased  ;  he  did  not  see  the  cane  in  the  pos- 
;ssion  of  the  prisoner  at  the  commencement  of  the  affray,  nor  did 
e  see  it  used  during  the  contest.  And  yet  we  cannot  doubt  but 
lat,  as  to  these  particulars,  he  did  not  see  what  really  occurred. 

1  think,  gentlemeu,  you  must  believe  from  the  testimony  of  Mr. 
ambreleng,  corroborated  as  it  is  by  the  testimony  of  other  wit- 
esses  in  the  cause,  that  from  the  moment  the  prisoner  began  to 
rike  with  the  head  of  the  cane  after  it  was  unsheathed,  he  had 
le  advantage  of  the  deceased  :  that  though  the  deceased  return- 
1  the  blows  with  his  fist,  he  was  from  that  moment  retreating,  and 
iat  while  he  was  retreating,  the  prisoner  continued  to  use  the 
eapon  by  striking  the  deceased  with  it  till  he  fell.  1  shall  refrain 
otn  making  any  observations  on  the  testimony  of  the  physicians, 
you  take  the  testimony  of  Doctor  Mott,  then  it  follows  that  it  was 
lpossible  the  deceased  could  have  received  the  wound  otlier- 
ise  than  by  falling  on  the  dagger.  But  you  will  recollect  the 
unions  of  several  other  medical  gentlemen  in  opposition  to  that  of 
octor  Mott ;  and  1  must  leave  you  to  draw  such  conclusions  from 
is  conflicting  testimony  as  you  may  think  proper.  It  is  a  little 
igular,  that  the  two  medical  gentlemen  who  were  called  to  exa¬ 
mine  the  body,  with  a  view  to  their  being  witnesses  on  this  occa- 
:m,  should  differ  even  in  their  descriptions  of  the  wound. 

With  these  observations  on  the  testimon  , ,  1  shall  now  endeavour 
state  and  explain  to  you  so  much  of  the  law  of  homicide  as  it 
i  pears  to  me  necessary  you  should  understand,  to  enable  you  to 
nder,  as  you  are  bound  to  do,  your  verdict  according  to  law.  You 
ve  been  reminded  with  great  earnestness,  that  you  are  in  this 
:d  every  criminal  case,  judges  of  the  law  as  well  as  the  fact.  It  is 
1  th  great  satisfaction  that  1  can  charge  you  that  this  is  your  pro- 
nce.  You  are  sworn  (o  render  your  verdict  according  to  the 
<idence  as  applied  to  the  law.  You  must  be  as  conscientiously  sa¬ 
llied  as  to  the  law  as  to  the  fact.  In  this  respect,  the  members  of 
tp  court  are  but  vour  constitutional  advisers  :  and  if  you  do  not 


believe  the  law  to  lie  as  it  is  stated  to  you  by  the  court,  if  you  can 
not  assent  to  the  reasoning  of  the  court  as  to  the  law,  or  are  con  t 
vinced  by  the  reasoning  of  the  counsel  that  the  bench  is  mistakei 
with  respect  to  the  law,  it  is  your  duty  to  act  according  to  the  con 
scientious  convictions  ofyour  own  understandings.  I  should  not  ii  , 
this  case,  as  I  seldom  do  in  any  case,  have  failed  to  have  stated  thi 
to  the  jury.  It  is  a  consolation  to  me  to  think  that  any  errors  1  ma 
make  either  as  to  law  or  fact  in  the  discharge  of  the  duty  1  amnov  , 
performing,  may  be  corrected  by  your  good  sense  and  discretion,  j 

The  law  of  homicide,  and  of  course  the  law  of  manslaugh 
ter,  is  the  same  that  it  was  in  this  country  on  the  19th  o 
April,  1775.  By  the  constitution  of  our-state,  it  is  declared  tha  \ 
such  parts  of  the  law  of  England  and  of  the  then  province  as  forme  ' 
the  law  of  the  colony  on  that  day,  should  continue  to  be  the  law 
unless  it  was  altered  by'  the  legislature.  The  legislature  has  mad' 
no  alteration  in  the  law  of  homicide,  except  in  respect  to  th 
punishment.  As  the  law  now  stands,  the  crime  of  manslaughte 
must  be  punished  in  all  cases  with  at  least  three  years  imprisonmer 
in  the  state  prison.  I  have  no  hesitation  to  say,  that  I  do  belicv 
this  never  was  intended  by  the  legislature,  but  that  it  is  the  reap! 
of  careless  revisions  of  several  sections  of  different  laws  to  wliic 
we  must  refer  to  ascertain  what  is  the  punishment  prescribed  fc 
this  crime. 

As  the  crime  of  manslaughter  may  on  the  one  hand  be  so  near) 
allied  to  the  crime  of  murder  that  there  may  be  but  little  diffei 
ence  between  the  moral  guilt  of  the  one  and  the  other,  so  on  th 
other  hand  the  crime  of  manslaughter  may  approach  so  nearly  t 
excusable  homicide  that  there  may  be  but  a  shade  of  differenc 
between  them.  It  is  lor  this  reason  that  the  punishment  of  th 
crime  was  by  the  English  law,  when  we  adopted  it,  left  almost  er  < 
tirely  to  the  discretion  of  the  judges,  and  the  court  might  pass  i 
sentence  which  was  in  fact  but  a  nominal  punishment.  1  canir 
believe,  therefore,  that  the  legislature  of  our  state  have  foresee  f 
that  their  enactments  would  oblige  their  courts  in  all  cases  of  mat  S 
slaughter  to  pronounce  a  judgment  which  must  subject  every  pe 
son  found  guilty  of  this  crime  not  only  to  a  severe,  but  a  disgrace! 
punishment. 

But  it  is  not  our  province  to  inquire  what  the  law  oug 
to  be,  but  what  it  is  ;  and  we  are  bound  to  administer  the  la  I 
as  it  is.  You  are  to  say  on  your  oaths  whether  or  not,  accordir 
to  the  law  as  it  exists,  the  prisoner  has  been  guilty  of  the  crin  | 
with  which  he  is  charged,  and  your  verdict  never  can  in  the  leu  .1 
depend  on  the  consideration  of  what  will  be  the  consequences  » 
him  if  you  should  find  him  guilty. 

We  having  adopted  that  part  of  the  common  law'  of  Englai  1 
which  relates  to  homicide,  must  resort  to  that  law  for  a  defir  j 
tion  of  the  crime  of  manslaughter.  We  must  resort  to  this  law 
our  ancestors  not  only  in  this  instance  and  for  this  purpose,  b  4 
without  it  we  should,  in  every  stage  of  judicial  proceedings,  I  n 
without  a  guide.  We  have  no  other  authority  by  which  we  c  1 


189 


istablish  what  shall  and  what  shall  not  be  considered  as  murder  3 
ve  cannot  ascertain  what  constitutes  a  felony  or  a  larceny  without 
ippealing  to  the  common  law  of  England.  I  am  not  an  eulogist  of 
his  law,  but  1  may  say  that  we  derive  from  it  our  most  sacred  and 
'aluable  institutions.  It  is  the  common  law  of  England  that  has 
established  the  trial  by  jury  ;  it  is  under  that  law  that  the  prisoner 
low  appeals  to  you  as  to  his  country,  as  to  his  guilt  or  innocence  ; 
md  it  is  under  that  law  that  you  are  authorised  to  determine  that 
ppeal  as  you  may  believe  the  law  and  fact  to  be. 

By  the  common  law  of  England,  which  is  now  our  common  law, 
nanslaughter,  as  I  have  before  represented  to  you,  is  defined  to  be, 
unlawfully  killing  a  person  witiiout  malice  expressed  or  implied.” 
f  there  be  malice,  then  the  crime  is  murder.  What  constitutes  or 
3  evidence  of  malice,  would  be,  when  the  prisoner  is  only  charged 
vith  manslaughter,  foreign  to  our  present  inquiries. 

If  it  has  been  proved  that  the  prisoner  killed  the  deceased,  or  in 
he  words  1  have  previously  adopted,  if  it  has  been  proved  that  the 
eceased  came  to  his  death  by  the  instrumentality  of  the  prisoner, 
hen  the  killing  will  be  at  least  manslaughter,  unless  the  prisoner 
an  show  by  testimony  that  he  has  himself  produced,  or  by  the 
estimony  brought  forward  on  the  part  of  the  prosecution,  that  the 
ailing  was  not  unlawful.  He  has  not  done  this,  unless  the  testimony 
as  satisfied  you  that,  in  taking  (he  life  of  the  deceased,  he  was  either 
ustitiable  or  excusable.  And  this  leads  us  to  a  consideration  of 
aese  two  species  of  homicide.  In  other  words,  we  are  to  consider 
'hen,  according  to  law,  a  homicide  shall  be  considered  as  justifiable 
r  excusable. 

A  homicide  is  justifiable  when  a  person  is  put  to  death  either  by 
he  command  of  the  law,  as  when  an  officer  duly  inflicts  a  capital 
■uiiishment,  or  bv  permission  of  the  law'. 

Homicide  permitted  by  law,  is  for  the  advancement  of  justice,  as 
o  prevent  an  escape,  quell  a  riot,  &c. — or  for  the  prevention  of 
rime.  If  an  attempt  is  made  to  perpetrate  a  crime  which  in  itself 
as  capital,  and  punishable  with  death  by  the  common  law,  if  the 
ccomplishment  of  that  crime  cannot  otherwise  he  prevented,  the 
tw  permits  it  to  be  done  by  slaying  the  offender. 

I  shall  not,  gentlemen,  dwell  on  this  branch  of  the  subject,  be- 
mse  it  has  not,  l  believe,  been  suggested  by  the  counsel  for  the 
risoner  that  the  killing  of  Mr.  Stoughton  was  a  justifiable  homi- 
de,  according  to  the  legal  acceptation  of  these  terms.  Indeed 
iere  could  be  no  ground  for  such  a  suggestion,  because  there  is 
othing  that  would  for  a  moment  lead  us  to  believe  that  the  deceased 
fended  to  commit  a  felony.  No  one  can  believe  that  when,  un- 
"med  as  he  was,  he  struck  the  prisoner  and  engaged  with  him  in 
e  fatal  affray,  armed  as  the  prisoner  was,  that  the  deceased  could 
ive  contemplated  the  possibility  of  his  taking  the  life  of  the  pri- 
ner  ;  or  that  the  prisoner  could  have  had  any  just  fears  of  such 
i  event. 

The  counsel  for  the  prisoner  have  put  his  defence,  as  it  appears 
i  me,  on  other  grounds  :  they  have  endeavoured  to  convince  you 


that  the  killing  ol'  the  deceased  was  not  justifiable,  but  that  it  wai 
excusable. 

This  requires  of  us  a  more  careful  and  particular  consideration 
of  this  species  of  homicide  than  1  haye  thought  it  necessary  tc 
bestow  on  those  kinds  of  homicide  1  have  already  noticed. 

Excusable  homicide  may  be  where  the  killing  is  either  withou 
the  will  of  the  slayer,  or  it  may  be  where  the  killing  is  intentional 

Involuntary  excusable  homicide  is  where  one  who  is  engaged  it  , 
a  lawful  act,  in  the  execution  of  that  lawful  act,  happens,  by  men 
accident  and  without  any  intention  oh  his  part,  to  kill  another.  Thi 
is  also  called  homicide  per  infortunium,  or  misadventure.  It  is  ai 
essential  quality  of  this  species  of  homicide,  that  the  act  vvhicl 
immediately  caused  the  death  was  lawful  ;  if  it  were  otherwise 
then  the  killing  cannot  be  excusable  homicide.  As  an  exemplitica 
tion  of  the  law  on  this  branch  of  our  subject,  let  us  refer  to  sonv 
of  the  very  numerous  cases  which  have  been  read  to  you.  A  per 
son  was  chopping  with  an  ax  ;  the  iron  flew  off  and  killed  a  by 
stander.  This  was  excusable  homicide,  because  chopping  the  woo 
was  a  lawful  act,  and  there  was  no  intention  to  kill.  But  if  th 
slayer  had  been  chopping  at  his  neighbour's  door  to  get  into  hi 
house  to  commit  a  felony,  or  even  a  trespass,  no  doubt  the  killin 
would  have  been  at  least  manslaughter,  because  the  slayer  was  en 
gaged  in  an  unlawful  act.  So  a  person  shooting  at  a  mark  on  hi 
own  ground,  happened  to  kiil  another,  and  was  held  excusable 
But  if  he  had  been  trespassing  on  bis  neighbour  when  he  cause 
the  death  by'  this  means,  he  could  not  have  been  excused. 

A  parent  correcting  his  child  with  u  fit  instrument  for  chastise 
ment,  with  moderation,  would  be  excused,  though  by  some  impre 
bable  accident,  as  hitting  the  child  on  the  eye  or  on  the  temple  i 
death  were  to  ensue,  because  it  was  lawful  for  him  moderately  t  j 
correct  his  child.  But  if  he  had  given  the  child  blows  with  an  in  f 
proper  instrument,  such  as  a  bar  of  iron,  a  heavy  rope  or  a  clui  1 
and  the  child  died  in  consequence,  the  parent  would  be  guilty  eij 
manslaughter  at  least  ;  because  it  was  unlawful  for  him  to  strike  <1 
child  with  such  an  instrument. 

Blit  as  strong  a  case  as  can  be  put  to  illucidate  that  branch  of  th 
law  which  I  am  now  endeavouring  to  explain  to  you,  is  that  of  tt . 
boxing  match.  Two  farmers,  prizefighters,  according  to  the  iff 
human  practice  of  I-Tngland,  fought  for  a  purse.  The  one,  with  • 
blow  of  the  fist  given  in  the  course  of  the  fight,  killed  the  other.  \ 
was  convicted  of  manslaughter  ;  because,  however  the  art  of  pugi  i 
ism  may  be  sanctioned  by  the  barbarous  fashion  of  the  country, 
was  against  her  laws. 

It  seems  to  me  that  these,  and  indeed  all  the  other  numerous  a  1 
tliorities  which  have  been  cited,  establish,  that  a  man  cannot  av<  j 
himself,  when  charged  with  a  homicide,  of  the  plea  of  misadventu  fc 
or  accident,  if  it  appear  that  the  misadventure  or  accident  happen'  I 
when  he  was  engaged  in  an  unlawful  act. 


And  this  brings  us  to  consider  more  particularly  the  question  l 
ave  before  surmised  :  that  is  to  say,  whether  the  prisoner,  when 
he  mortal  wound  was  received,  was  acting  lawfully  or  unlawfully. 

Notwithstanding  the  testimony  of  Mr.  Clark,  l  presume,  gentle, 
sen,  you  cannot  hesitate  to  believe  that  the  deceased  gave  the  lirst 
low,  but  it  does  not  follow  that  it  was  lawful  for  the  prisoner  to 
eturn  that  blow.  It  does  not  follow  that  it  was  lawful  for  him  to 
eturn  it  with  the  formidable  weapon  which  the  prisoner  held  in 
is  hand  ;  the  sword  was  then  unsheathed.  And  much  less  does  it 
blow  that  it  was  lawful  for  the  prisoner  to  follow  with  repeater] 
lows,  with  the  h.utt  end  of  the  drawn  dagger,  his  retreating  adver- 
ary,  till  he  had  felled  him  to  the  earth.  But  I  shall  have  occasion 
lore  fully  and  particularly  to  discuss  the  lawfulness  of  the  prison- 
r’s  conduct  under  the  next  division  of  the  subject,  as  1  shall  sub-, 
lit  it  to  your  consideration.  In  the  mean  time  allow  me  to  notice 
n  argument  which  has  been  suggested  by  the  prisoner’s  counsel  : 
lat  it  was  lawful  for  the  prisoner  to  return  the  blow  of  the  de- 
eased  ;  because,  if  the  deceased  had  survived,  and  had  instituted 
civil  action  of  assault  and  battery  against  the  prisoner,  he  could 
ot  have  recovered  in  such  an  action,  however  he  might  have  been 
ljured,  if  it  appeared  yhat  the  deceased  struck  first.  The  law  is 
ertainly  so  ;  but  the  inference,  that  therefore  it  was  lawful  for  the 
risoner  to  return  the  blow,  is  in  my  mind  totally  incorrect.  If  ;i 
lan  brings  an  action  of  assault  and  battens  the  defendant  may  plead 
m  assault  demesne;  which  is,  that  the  plaintiff  committed  the  first 
ssault  ;  and  if  he  can  prove  or  maintain  this  plea,  the  action  will 
e  dismissed  ;  not  because  the  defendant  may  not  have  returned 
le  assault  unlawfully,  but  because  the  just  policy  of  the  law  will 
rt  suffer  a  party  in  a  civil  suit  to  receive  pecuniary  damages  for 
1  injury  which  he  himself  invited,  or  for  violence  which  was  oc- 
isioned  by  his  own  wrongful  act  or  provocation. 

But,  that  a  first  assault  will  not  always  justify  a  consequent  assault 
id  battery,  is  established  by  the  well-known  and  well-established 
axim  of  criminal  courts,  that  every  assault  will  not  justify  every 
ttery.  It  is  upon  this  principle  that  we  here  frequently  eonvict 
>th  parties  to  an  afiray,  in  what  are  called  cross  indictments  of  an 
sault  and  battery.  That  is,  we  convict  both  the  person  who 
■mmitted  the  first  assault,  and  he  who  was  first  assaulted,  if  he 
1  at  his  antagonist  with  more  violence  than  was  necessary  to  pro- 
t’t  himself  and  repel  the  attack,  it  is  true,  courts  and  juries  are. 
;t  very  nice  in  measuring  the  force  that  may  be  lawfully  used  in 
ipelling  a  first  aggression  of  this  nature  ;  but  nevertheless  it  is  well 
itablished,  that  no  more  is  lawful  than  is  absolutely  necessary  for 
df-defence.  It  is  manifest,  that  if  the  law  were  not  so,  the  most 
I'uta!  violence  might  go  unpunished,  if  the  slightest  insult,  by  lay- 
k  hands  in  ever  so  light  a  manner,  might  be  returned  by  unmerciful 
lows  and  wounds  to  any  extent ;  the  law.  instead  of  sanctioning 
s  f-protection,  would  countenance  malice  and  revenge. 


172 


With  these  observations  on  this  point,  I  submit  it  to  you, gentle 
men,  to  determine  whether  the  deceased  can  be  said  to  have  coun 
to  his  death  by  misadventure. 

The  second  species  of  excusable  homicide  is,  where  the  killin: 
may  be  intentional  or  voluntary,  but  is  excused,  because  it  wa 
necessary  for  the  slayer  to  take  the  life  of  his  antagonist,  to  pre 
serve  his  own  life,  or  to  protect  himself  from  bodily  harm.  Thi 
is  what  is  called  in  law  language  chance-medley,  or  homicide  se  defer, 
dendo. 

But  to  render  this  plea  availing,  the  slayer  must  show  that  he  ha 
at  least  probable  grounds  to  believe  that  the  attack  of  his  adversar 
put  his  own  life  in  danger,  or  that  it  exposed  him  to  great  bodil 
harm;  and  that  he  had  no  probable  means  of  saving  the  one,  c 
avoiding  the  other,  without  putting  his  assailant  to  death. 

Butso  cautious  is  the  law  in  admitting  this  plea  of  self-defence,  th: 
it  recpiires  that  the  slayer,  before  he  resorts  to  these  fatal  means' 
protecting  himself,  should  manifest  the  necessity  of  doing  so,  l 
retreating  so  far  as  the  fierceness  of  the  attack,  and  a  due  regard  t  j 
his  own  safety,  will  permit.  It  is  true  that  the  assault  may  be  i 
sudden,  violent  and  dangerous,  as  not  to  leave  the  parly  a  moment 
time  for  reflection  or  retreat ;  and  a  blow  returned  under  such  ci 
cumstances,  though  it  proved  fatal,  might  fie  excusable.  But  u 
fortunately  we  have  not  here  to  consider  how  far  a  single  retui 
blow  might  be  lawful  ;  but  we  are  to  inquire  whether  it  \gas  lai 
ful  for  the  prisoner,  armed  as  he  was  with  that  dangerous  weapo  i 
which  has  been  so  often  exhibited  to  you,  to  follow  up  his  retreatii 
and  unarmed  adversary  with  blow  after  blow.  You  will  have  i 
decide,  gentlemen,  whether  the  prisoner  had  any  reason  to  fearti  i 
loss  of  life,  or  even  bodily  harm,  from  the  attack  of  the  deceasei 
and  whether  if  he  had,  he  showed  any  disposition  to  save  himse 
or  to  avoid  a  contest,  by  retreating.  Upon  these  points  1  must  i 
feryou  to  the  testimony  of  Mr.  C'ambreleng;  who,  so  far  as  it  i 
lates  to  these  questions,  is,  in  my  opinion,  uncontradicted  and  uni 
peached. 

1  shall,  gentlemen,  read  to  you  some  passages  from  a  hook,  whi 
I  believe  lias  not  been  ciled  by  the  counsel  on  either  side,  and  yl 
mine  is  of  higher  authority  :  and  no  author  has,  in  my  opinion,  giv 
us  the  law  on  this  subject  more  amply  or  more  perspicuous 
Researches  have  been  made  in  writers  of  the  most  distant  times ' 
the  law  of  homicide,  while,  in  my. opinion,  all  that  we  can  desire  ill 
th  is  occasion,  might  be  drawn  in  its  utmost  purity  from  this  modu  I 
source.  You  wili  find  the  author  stating  with  the  utmost  exactne,  I 
that  the  circumstance  which  makes  the  distinction  between  excu"  j 
Me  homicide  in  self-defence  and  manslaughter  is,  whether  i:» I 
slayer  was  combating  or  not  when  he  occasioned  the  death  ;  if  1 J 
were  combating  and  not  necessarily  for  his  ow  n  defence,  then  its^J 
not  excusable  homicide,  but  is  manslaughter.  I  refer  to  the  4th  bicj 
ol  Blackstune's  Commentaries,  pages  103,  104,  105,  190,  191,  MM 


173 


1  2.  Homicirle  in  self-defence,  or  se  defendendo,  upon  a  sudden 
,'ray,  is  also  excusable  rather  than  justifiable  by  the  English  law. 
bis  species  of  self-defence  must  be  distinguished  from  that  just 
5W  mentioned,  as  calculated  to  hinder  the  perpetration  of  a  capital 
<une  ;  which  is  not  only  a  matter  of  excuse,  but  of  justification, 
lit  the  self-defence  which  we  are  now  speaking  of,  is  that  whereby 
rnan  may  protect  himself  from  an  assault  or  the  like,  in  the  course 
i  a  sudden  brawl  or  quarrel,  by  killing  him  who  assaults  him.  And 
t  s  is  what  the  law  expresses  by  the  word  chance-medley,  or  (as 
s  ue  rather  choose  to  write  it)  ckaud- medley ;  the  former  of  which 
i  its  etymology  signifies  a  casual  affray,  the  latter  an  affray  in  the 
lit  of  blood  or  passion  :  both  of  them  of  pretty  much  the  same  im- 
jrt ;  but  the  former  is  in  common  speech  too  often  erroneously 
iiplied  to  any  manner  of  homicide  by  misadventure.  This  right  of 
rtural  defence  does  not  imply  a  right  of  attacking  :  for,  instead  of 
sacking  one  another  for  injuries  past  or  impending,  men  need  only 
Ive  recourse  to  the  proper  tribunals  of  justice.  They  cannot 
t;refore  legally  exercise  this  right  of  preventive  defence,  but  in 
slden  and  violent  cases  ;  when  certain  and  immediate  suffering 
v  uld  be  the  consequence  of  waiting  for  the  assistance  of  the  law. 
therefore,  to  excuse  homicide  by  the  plea  of  self-defence,  it  must 
apear  that  the  slayer  had  no  other  possible  (or,  at  least,  probable) 
nans  of  escaping  from  his  assailant: 

‘  It  is  frequently  difficult  to  distinguish  this  species  of  homicide 
(aon  chance-medley  in  self-defence)  from  that  of  manslaughter,  in 
t:  proper  legal  sense  of  the  word.  But  the  true  criterion  be- 
t  sen  them  seems  to  be  this  :  when  both  parties  are  actually  com¬ 
bing  at  the  time  when  the  mortal  stroke  is  given,  the  slayer  ig 
t  m  guilty  of  manslaughter  ;  but  if  the  slayer  hath  not  begun  t® 
fht,  or  (having  begun)  endeavours  to  decline  any  farther  struggle, 
ail  afterwards,  being  closely  pressed  by  his  antagonist,  kills  him  to 
and  his  own  destruction,  this  is  homicide  excusable  by  seif-de- 
fice.  For  which  reason  the  law  requires,  that  the  person  who 
Ms  another  in  his  own  defence,  should  have  retreated  as  far  as  he 
c  iveniently  or  safely  can,  to  avoid  the  violence  of  the  assault,  be- 
fie  he  turns  upon  his  assailant ;  and  that  not  fictitiously,  or  in  order 
tnvatch  bis  opportunity,  but  from  a  real  tenderness  of  shedding 
h  brother’s  blood.  And  though  it  may  be  cowardice,  in  time  of 
w  between  two  independent  nations,  to  flee  from  an  enemy  ;  yet 
bween  two  fellow  subjects  the  law  countenances  no  such  point  of 
hiour;  because  the  king  and  his  courts  are  the  vindices  injuria- 
ru,  and  will  give  to  the  party  wronged  all  the  satisfaction  he  de- 
s<  ves.  The  party  assaulted  must  therefore  flee  as  far  as  he  con- 
v  liently  can,  either  by  reason  of  some  wall,  ditch,  or  other  im- 
p  liment ;  or  as  far  as  the  fierceness  of  the  assault  will  permit  him  : 
fc|  it  may  be  so  fierce  as  not  to  allow  him  to  yield  a  step  without 
mifest  danger  of  his  life,  or  enormous  bodily  harm  ;  and  then  in 
h  defence  he  may  kill  his  assailant  instantly.  And  this  is  the 
di  trine  of  universal  justice,  as  well  as  of  the  municipal  law. 


*■  And,  as  the  manner  of  the  defence,  so  is  also  the  time  to  ] 
considered  :  for  if  the  person  assaulted  does  not  fall  upon  the  si 
gressor  till  the  affray  is  over,  or  when  he  is  running  away,  this 
revenge,  and  not  defence. 

“  1.  Manslaughter  is  therefore  thus  defined,  the  unlawful  killi  t 
of  another,  without  malice  either  express  or  implied  :  which  m  , 
be  either  voluntarily,  upon  a  sudden  heat ;  or  involuntarily,  butl 
the  commission  of  some  unlawful  act.  And  hence  it  follows,  that  < 
manslaughter  there  can  be  no  accessaries  before  the  fact ;  becau  t 
it  must  be  done  without  premeditation. 

“  As  to  the  first,  or  voluntary  branch  :  if  upon  a  sudden  quari  , 
two  persons  fight,  and  one  of  them  kills  the  other,  this  is  ina  I 
slaughter  ;  and  so  it  is  if  they  upon  such  an  occasion  go  out  a  1 
fight  in  a  field  ;  for  this  is  one  continued  act  of  passion  :  and  t 
law-  pays  that  regard  to  human  frailty,  as  not  to  put  a  hasty  and  ci 
liberate  act  upon  the  same  footing  with  regard  to  guilt.  So  also' 
a  man  be  greatly  provoked,  as  by  pulling  his  nose,  or  other  gn 
indignity,  and  immediately  kills  the  aggressor,  though  this  is  i 
excusable  se  defendendo ,  since  there  is  no  absolute  necessity  i*j 
doing  it  to  preserve  himself ;  yet  neither  is  it  murder,  for  there 
no  previous  malice  ;  but  it  is  manslaughter. 

“The  second  branch,  or  involuntary  manslaughter,  differs  a 
from  homicide  excusable  by  misadventure,  in  this  :  that  misadvt 
ture  always  happens  in  consequence  of  a  lawful  act,  but  this  sj 
cies  of  manslaughter  in  consequence  of  an  unlawful  one.  Af 
two  persons  play  at  sword  and  buckler,  unless  by  the  king’s  co 
rnand,  and  one  of  them  kills  the  other,  this  is  manslaughter:  1 
cause  the  original  act  was  unlawful  ;  but  it  is  not  murder,  for 
one  had  no  intent  to  do  the  other  any  personal  mischief.  So  wh(< 
a  person  does  an  act  lawful  in  itself,  but  in  an  unlawful  manner,? 
without  clue  caution  and  circumspection  :  hs  when  a  workman  lliii 
down  a  stone  or  piece  of  timber  into  the  street  and  kills  a  man  ;  t: 
may  be  either  misadventure,  manslaughter,  or  murder,  according 
the  circumstances  under  which  the  original  act  was  done :  il 
were  in  a  country  village  where  a  few  passengers  are,  and  he  c; 
out  to  nil  people  to  have  a  care,  it  is  misadventure  only  ;  but  il 
■were  in  London,  or  other  populous  town,  where  people  are  co 
tinually  passing,  it  is  manslaughter,  though  he  gives  loud  Wir¬ 
ing  ;  and  murder  if  he  knows  of  their  passing,  and  gives  no  wa- 
ing  at  all,  for  then  it  is  malice  against  all  mankind.  And,  in  u 
neral,  when  an  involuntary  killing  happens  in  consequence  of# 
unlawful  act,  it  will  be  either  murder  or  manslaughter  according* 
the  nature  of  the  act  which  occasioned  it.  lf.it  be  in  the  proseel 
tion  of  a  felonious  intent,  or  in  its  consequences  naturally  tended# 
bloodshed,  it  will  be  murder ;  but  if  no  more  was  intended  than 
mere  civil  trespass,  it  will  only  amount  to  manslaughter.” 

The  case  of  Mr.  Selfridge,  who  was  tried  before  Chief  Just^j 
Parker,  has  been  referred  to  by  the  counsel  for  the  prisoner,  w» 
high  and  just  commendations  on  the  learned  judge  who  presided* 


175 


i  t  occasion.  I  shall  read  you  some  passages  from  the  report  of 
I  t  case,  that  you  may  the  better  understand  it. 

The  mayor  read  the  following  passage  from  the  charge  of  the 
ef  justice  :) 

‘  The  counsel  for  the  defendant  seem  to  deem  it  of  little 
nortance  to  ascertain  whether  the  blow  was  given  before  the 
:ol  was  discharged  or  not,  as  there  is  evidence  from  all  the  wit- 
i.ses,  that  an  assault,  at  least,  was  made  by  the  deceased,  before 
:  pistol  was  fired.  I  think  differently  from  them  upon  this 
<nt.  When  the  defence  is,  that  the  assault  was  so  violent  and 
<ce  that  the  defendant  could  not  retreat,  but  was  obliged  to  kill 
r  deceased  to  save  himself,  it  is  surelyof  importance  to  ascer- 
i  whether  the  violent  blow  he  received  on  his  forehead,  which 
the  same  time  that  it  would  put  him  off  his  guard,  would  satisfy 
i  of  the  design  of  the  assailant,  was  struck  before  he  fired  or 

I  doubt  whether  self-defence  could  in  any  case  be  set  up  where 
h  killing  happened  in  consequence  of  an  assault  only ,  unless  the 
siult  be  made  with  a  weapon  which,  if  used  at  all,  would  proba- 
1  produce  death. 

When  a  weapon  of  another  sort  is  used,  it  seems  to  me  that  the 
Act  produced,  is  the  best  evidence  of  the  power  and  intention  of 
s  assailant  to  do  that  degree  of  bodily  harm,  which  would  alone 
uiorize  the  taking  his  life  on  the  principles  of  self-defence. 

But  whether  the  firing  of  the  pistol  was  before  or  after  a  blow 
lick  by  the  deceased,  there  is  another  point  of  more  importance 
nyou  to  settle,  and  about  which  you  must  make  up  your  minds, 
xi  all  the  circumstances  proved  in  the  case  ;  such  as  the  rapidi- 
f  id  violence  of  the  attack,  the  nature  of  the  weapon  with  which 
as  made,  the  place  where  the  catastrophe  happened,  the  mus- 
u  r  debility  or  vigour  of  the  defendant  and  his  power  to  resist  or 
)  k  The  point  I  mean  is,  whether  he  could  probably  have  saved 
inelf  from  death  or  enormous  bodily  harm,  by  retreating  to  the 
M,  or  throwing  himself  into  the  arms  of  friends  who  would  pro- 
?chim.  This  is  the  real  stress  of  the  case.  If  you  believe,  under 
Hie  circumstances,  the  defendant  could  have  escaped  his  adver- 
ar’s  vengeance,  at  the  time  of  the  attack,  without  killing  him,  the 
eJnce  set  up  has  failed,  and  the  defendant  must  be  convicted. 

If  you  believe  his  only  resort  for  safety  was  to  take  the  life  of 
is  ntagonist,  he  must  be  acquitted,  unless  his  conduct  has  been 
k  prior  to  the  attack  upon  him,  as  will  deprive  him  of  the  privi- 
-g  of  setting  up  a  defence  of  this  nature.  It  has,  however,  been 
ugjjsted  by  the  defendant’s  counsel,  that  even  if  his  life  had  not 
ec  in  danger,  or  no  great  bodily  harm,  but.  only  disgrace  was  in- 
:  n  ;d  by  the  deceased,  there  are  certain  principles  of  honour  and 
at  al  right,  by  which  the  killing  may  be  justified, 

‘These  are  principles  which  you  as  jurors,  and  I  as  a  judge,  can- 
ot  ecognize.  The  laws  which  we  are  sworn  t«  administer,  are 
otlrunded  upon  them. 

I 


170 


“  Let  those  who  choose  such  principles  for  their  guidance,  eij 
a  court  for  the  trial  of  points  and  principles  of  honour  ;  but  let  I 
courts  of  law  adhere  to  those  principles  which  are  laid  down  in  i 
books,  and  whose  wisdom  ages  of  experience  hare  sanctioned,! 
therefore  declare  it  to  you  as  the  law  of  the  land,  that  unless  j 
defendant  has  satisfactorily  proved  to  you,  that  no  means  ot  sail 
his  life,  or  his  person  from  the  great  bodily  harm  which  was  :q  . 
rently  intended  by  the  deceased  against  him,  except  killing  his  . 
versary,  were  in’his  power,  he  has  been  guilty  of  manslaughl 
notwithstanding  you  may  believe  with  the  grand  jury  w  ho  found  j 
bill,  that  the  case  does  not  present  the  least  evidence  of  malice! 
premeditated  design  in  the  defendant  to  kill  the  deceased  or  i 
other  person.  - 

“  1  ought  not  to  rest  here  ;  for  although  I  have,  stated  to  you  j 
when  a  man’s  person  is  tiercel}'  and  violently  assaulted,  under 
cumstances  which  jeopardize  his  life  or  important  members, 
may  protect  himself  by  killing  his  adversary  ;  yet  he  may  from 
existence  of  other  circumstances  proved  against  him,  forfeit 
right  to  a  defence  which  the  laws  of  God  and  man  would  other' 
have  given  them. 

“  If  a  man,  for  the  purpose  of  bringing  another  into  a  qua: 
provokes  him  so  that  an  affray  is  commenced,  and  the  person  cau 
the  quarrel  is  overmatched,  and  to  save  himselffrom  apparent 
ger  kill  his  adversary,  he  would  be  guilty  of  manslaughter  if n* 
murder,  because  the  necessity  being  of  his  own  creating,  shall! 
operate  in  his  excuse.” 

I  had  intended,  gentlemen,  to  read  you  other  passages  from* 
book,  but  I  find  myself  so  fatigued  and  exhausted,  that  1  mustl 
deavour,  as  far  as  I  possibly  can,  to  abridge  the  task  in  which  I 
engaged.  I  shall,  therefore,  trust  to  my  memory  to  give  youl 
outlines  of  that  case,  that  you  may  see  that  it  was  as  different, 
this  as  almost  any  other  case  could  be. 

Mr.  Selfridge  had  been  offended  with  Mr.  Benjamin  Austin 
father  of  the  young  gentleman  who  was  killed,  in  consequenc 
which,  Mr.  Selfridge  posted  the  father,  by  publishing  in  the  pa 
an  advertisement  in  very  harsh  terms.  Mr.  Selfridge  learned 
the  father  had  said  that  he  wmuld  not  have  any  altercation  with 
Selfridge  himself,  but  that  some  one  would  take  him  in  hand 
could  handle  him.  Mr.  Selfridge  considered  this  as  an  intitn 
that  he  was  to  be  attacked  ;  and  when  he  went  out  on  his  ordi 
business,  he  put  a  loaded  pistol  into  his  pocket.  Mr.  Selfridge  wi 
feeble  man.  As  he  was  going  to  the  exchange,  he  was  attaclu 
the  street  by  young  Mr.  Austin,  who  suddenly  rushed  uponfl 
with  a  cane  with  which  he  made  a  blow  at  the  head  of  Mr. 
fridge,  on  which  Mr.  Selfridge  drew  his  pistol  and  shot  the  ia-iil- 
ant.  There  was  some  contradictory  testimony  whether  Mr.  #1 
fridge  received  the  blow  on  his  head  before  the  pistol  was 
or  whether  he  tired  as  Mr.  Austin  was  striking  the  blow.  MrJB 
fridge,  how'ever,  received  a  large  contusion  on  his  forehead,  aull 


177 


\)\v  was  with  so  weighty  an  instrument  and  with  such  force,  that 
made  a  considerable  opening  in  his  hat.  It  was  left  to  the  jury  in 
at  case  to  determine  whether  the  attack  was  not  such  a  one  as 
jit  the  slayer  in  danger  of  life,  or  of  great  bodily  harm  :  and  whe- 
:er  it  was  not  so  sudden  as  to  render  a  retreat  impossible,  consist- 
itly  with  the  safety  of  Mr.  Selfridge./  The  jury  must  have  found 
irmatively  on  these  points,  and  therefore  acquitted  Mr.  Selfridge, 
i  tiie  ground  that  the  homicide  was  excusable  in  self-defence. 
ie  same  points  are  referred  to  you  now,  gentlemen,  but  I  regret  to 
■y,  upon  a  totally  different  state  of  facts. 

There  is  one  other  rule  of  law  which,  anxious  as  I  am  to  conclude, 
hei  myself  bound  to  notice  :  it  is,  that  the  slayer  shall  not  be  per- 
rtted  to  avail  himself  of  the  plea  of  self-defence,  if  he  designedly 
pvoked  the  deceased  to  make  the  first  assault.  To  this  point 
jveral  authorities  have  been  read  to  you.  You  have  already 
hird  the  opinion  of  the  court,  gentlemen,  that  the  prisoner  did  not 
enmit  an  assault  by  pointing  his  cane  at  the  deceased  when  they 
aproached  each  other,  because  there  was  nothing  in  that  action 
rich  indicated  that  the  prisoner  had  an  intention  to  strike  the  de> 
cised  at  that  moment  :  but  nevertheless,  when  the  prisoner  ac- 
enpanied  that  scornful  action  with  the  reproachful  and  insulting 
wrds,  “  there  goes  a  coward  and  a  scoundrel” — when  he  repeat- 
3  this  action  and  these  words  at  the  very  side  of  I  he  prisoner,  can 
a  say  he  did  not  provoke  the  deceased  to  assault  him  ? 

f,  gentlemen,  the  principles  of  law  be  as  1  have  stated  them  to 
yi.  then  it  is  immaterial  as  to  the  verdict  )ou  are  now  to  render, 
rvetherthe  wound  was  given  while  the  deceased  held  the  dagger  in 
h  hand,  or  whether  during  the  affray  the  prisoner  dropped  or  threw 
juy  the  sword,  and  the  deceased,  in  consequence  of  a  blow  or 
vdcnce  from  the  prisoner,  fell  upon  it. 

say,  in  my  opinion,  it  will  make  no  difference  whether  the  de- 
:(sed  came  by  his  death  in  the  one  or  the  other  of  these  ways  ; 
si  e  the  question  is,  whether  the  slayer  be  guilty  of  manslaughter, 
uiot  guilty,  and  not  whether  he  be  guilty  of  manslaughter  or  mur- 
lf.  If  killing  without  an  intent  to  kill,  in  the  execution  of  an  un- 
a ful  act,  be  manslaughter,  then  it  is  immaterial  by  what  means 
h  death  is  produced,  so  it  immediately  proceeds  from  the  unlaw- 
uuct.  Suppose  two  men  were  fighting,  and  oneshould  knock  ihe 
st  rdown,  and  by  his  fall  on  a  stone  be  should  fracture  his  skull, 
in  he  thereby  lose  his  life,  can  it  be  douhted  but  that  it  would  be 
n;  slaughter  ?  One  man  knocks  another  off  a  stoop,  or  out  of  a  win- 
lo,  and  death  ensues  in  consequence  of  the  fall  :  no  question  but 
t  jpuld  he  manslaughter,  although  it  should  ever  so  manifestly  ap- 
ae-  there  was  no  intention  to  kill. 

at  if  you  Should  be  of  opinion  that  the  deceased  came  to  his 
le  h  1  > v  filling  on  the  dagger,  then,  as  you  heard  me  state  in  an 
stage  of  this  cause,  there  is  a  technical  question  whether  the 
arimer  can  be  convicted  on  this  indictment,  though  he  should  have 
ihi  comojilted  the  crime  of  manslaughter. 


17cJ 


This  indictment,  in  every  count,  charges  that  the  prisoner  ii 
dieted  the  wound  with  a  sword  or  dagger  held  in  his  hand,  and  th 
question  is,  whether  the  testimon}  will  support  the  indictment,  it' 
proves  that  the  wound  was  not  given  by  the  prisoner’s  hand,  bui  ri 
ceived  in  the  fall. 

After  the  best  consideration  I  have  been  able  to  give  this  subjec 
the  doubts  I  had  have  been  removed,  and  l  now  believe  the  indie 
merit  may  be  supported  by  such  proof.  The  rule  oflaw  is,  that  tl 
indictment  and  proof  must  correspond  as  to  the  nature  or  kind  i 
death.  variance  as  to  the  particular  manner  is  immaterial.  Thus,; 
you  may  have  learned  from  the  authorities  which  have  been  re; 
to  you,  where  the  indictment  charged  the  wound  to  have  bee 
given  by  a  sword,  it  was  considered  as  supported  by  testimony, 
it  was  given  by  a  staff.  So  where  the  indictment  charged  the  dea 
to  have  been  occasioned  by  the  administring  of  one  kind  of  poiso 
and  it  was  proved  that  the  poison  was  of  a  different  kind,  the  slayi 
ivas  convicted.  But  if  the  indictment  charged  the  death  to  be  1 
stabbing,  it  would  not  be  supported  by  evidence  that  the  deceasi 
was  drowned  :  nor  if  the  charge  was  that  he  was  drowned,  wou 
it  be  supported  by  evidence  that  he  w'as  poisoned  :  because  the 
means  of  death  are  of  a  different  kind  or  nature.  In  this  case,  ti 
death  is  charged  to  have  been  occasioned  by  a  wound  w  ith  a  swo 
or  dagger,  and  as  it  is  not  disputed  but  that  the  deceased  came  1 
his  death  by  such  a  wound,  I  think  it  immaterial  whether  the"  pi 
soner  held  it  in  his  hand  or  not,  provided  his  unlawful  act  occasio 
ed  the  wound. 

I  have  given  my  opinion  or  advice  to  you  on  the  law  poir 
which  have  arisen  in  this  interesting  cause,  without  hositalii 
or  reserve  :  I  have  felt  myself  bound  to  do  so,  when  1  in  fa 
entertained  no  doubt  as  to  the  law.  But  that  the  prisoner  m 
have  the  full  benefit  of  the  errors  I  may  have  committed,  I  havei 
duced  to  ivriting  the  legal  advice  I  have  given  you,  in  the  form 
points,  that  my  opinions  may  with  the  more  facility  be  reversed 
a  higher  tribunal.  These  1  will  now  read  to  you  : 

POINTS. 

1.  The  law  of  homicide,  and  of  course  the  law  of  manslaughti 
is  the  same  as  it  was  in  this  state  on  the  19th  of  April,  17' 
so  far  as  it  has  not  been  altered  by  acts  of  the  legislature,  sub: 
quent  to  the  adoption  of  the  state  constitution.  And  the  legislating 
has  passed  no  act  on  the  subject  that  can  affect  this  case,  except 
relation  to  the  punishment,  which  the  jury  ought  not  to  take  ii 
consideration. 

2.  If  the  prisoner  intentionally  gave  the  mortal  wound  while  | 
was  fighting  with  the  deceased,  and  the  prisoner  was  not  in  dang 
of  life  or  great  bodily  harm,  the  killing  may  be  manslaughb. 
though  death  was  not  intended,  and  though  the  deceased  struck  h 
first  blow. 

3.  If  the  dagger  fell  from  the  hand  of  the  prisoner,  or  he  thr  ' 
it  down  after  it  was  unsheathed  and  he  had  used  it  to  beat  the .*1 


179 


(•eased,  and  while  the  prisoner  was  fighting  with  the  deceased  ;  and 
jf  while  the  prisoner  continued  t.o  fight  with  the  deceased,  and  the 
prisoner  was  not  necessarily  defending  himself  from  loss  of  life  or 
great  personal  harm,  or  just  apprehension  thereof,  the  deceased  fell 
upon  the  dagger  in  consequence  of  a  blow  or  violence  offered  by 
the  prisoner,  and  so  received  the  mortal  wound,  it  may  be  man¬ 
slaughter. 

4.  That  although  the  wound  be  charged  in  the  indictment  to  have 
been  given  with  a  weapon  held  in  the  hand  of  the  prisoner,  yet  he 
ma}'  be  convicted  of  the  offence  charged  in  the  indictment,  though 
the  jury  should  believe  he  came  tp  his  death  in  the  manner  last 
supposed. 

Testimony  has  been  introduced  as  to  the  prisoner’s  conduct  after 
the  affray,  and  when  he  was  arrested  and  brought  for  examination 
before  me.  1  can  only  say,  that  1  have  perceived  no  evidence  of 
any  thing  in  the  prisoner’s  expressions  or  behaviour  subsequent  to 
the  death  rf  the  deceased,  inconsistent  with  the  defence  now  set 
up  for  him,  that  the  wound  was  given  without  his  intention  or  know¬ 
ledge.  And  I  feel  it  incumbent  to  state  to  you,  that  in  all  my  official 
intercourse  with  him,  he  has  conducted  himself  with  great  propri¬ 
ety  :  he  has  manifested  a  manly  firmness,  and  at  the  same  time  a 
manly  feeling.  I  have  never,  gentlemen,  been  able  to  look  upon 
him,  and  cannot  now  look  upon  him,  without  the  most  sincere  re¬ 
gret  that  he  should  be  placed  in  the  situation  in  which  he  Stands. 

I  have  now,  gentlemen,  nearly  concluded  the  anxious  and  pain¬ 
ful  task  I  have  had  to  perform.  I  will  only  add,  that  if  you  have 
any  rational  doubts  as  to  the  law  or  facts,  you  ought  to  acquit ;  but 
if  you  have  not,  you  are  bound  to  say,  whatever  pain  it  may  cost 
you,  that  the  prisoner  is  guilty.  In  the  one  case  an  offender  may 
escape  unpunished,  in  the  other,  you  may  have  tearful  eyes,  but 
you  will  have  peaceful  hearts. 

It  was  now  a  quarter  past  one  o’clock  ;  and  as  from  the  time  the 
ury  were  to  be  given  in  charge  to  the  officers  sworn  to  keep  them, 
hey  could  not  have  any  refreshment,  the  court  proposed  waiting  till 
hey  should  partake  of  something  prepared  for  them  by  the  care  of 
he  sheriff.  They  accordingly  retired  under  the  charge  of  two 
narshals,  and  returned  at  two  o’clock,  the  court  still  waiting  to  re¬ 
vive  them  ;  aod  their  names  being  again  called  over,  the  same  two 
officers,  together  with  Mr.  Abraham  Aston,  one  of  the  deputy  she- 
'iffs,  were  sworn,  and  their  oath  was  this  :  “You  shall  go  out  with 
he  jury  who  are  sworn  in  this  cause  ;  you  shall  keep  th,em  toge- 
her  in  some  private  and  convenient  place,  without  meat  or  drink  ; 
:'ou  shall  suffer  no  person  to  speak  to  them  or  either  of  them,  nor* 
peak  to  them  yourselves,  nor  to  either  of  them,  until  they  shall 
gree  on  their  verdict,  unless  it  be  to  ask  them  if  they  have  agreed 
n  their  verdict,  without  being  otherwise  directed  by  the  court.” 

The  jury  remained  out  till  six  o’clock  of  the  following  (Saturday) 
fternoon,  when  they  announced  to  the  court  by  one  of  the  offi- 


130 


te rs,  that  they  were  agreed  on  their  verdict.  The  pressure  and 
anxiety  of  the  crowd  was  such,  that  the  court  took  precaution  to 
prevent  my  indecorous  expression  of  feeling  ;  and  the  mayor  ad¬ 
monished  the  audience  of  the  necessity  of  observing  good  order  and 
silence. 

The  jury  being  now  returned  to  the  jury  box,  their  names  were 
called  over,  and  they  all  answered  as  before. 

Clerk.  Gentlemen,  have  you  agreed  on  your  verdict  ? 

Mr.  Gordon ,  ilie  Foreman  of  the  Jury.  YVe  have. 

Clerk.  Robert  M.  Goodwiu,  prisoner  at  the  bar,  stand  up  ;  pri¬ 
soner,  look  upon  the  jurors  ;  jurors,  look  upon  the  prisouer.  IIow 
say  you,  gentlemen,  do  you  find  Robert  M.  Goodwin,  the  prisoner 
at  the  bar,  guilty  or  not  guilty  of  the  felony  with  which  he  stands 
charged  ? 

Foreman.  Guilty.  But  we  beg  leave  to  recommend  him  to  the 
mercy  of  the  court. 

Before  the  verdict  had  been  received  and  recorded,  Mr.  Hoff¬ 
man,  on  behalf  of  the  prisoner,  prayed  that  the  jury  might  be  polled  ; 
and  further,  that  they  might  be  instructed  by  the  court,  that  al¬ 
though  they  had  joined  in  the  general  verdict  given  in  by  their  fore¬ 
man,  they  were  still  at  liberty  to  dissent  from  it. 

The  Mayor.  Gentlemen,  what  the  counsel  has  said  is  (rue,  and  I 
will  further  add, that  unless  your  consciences  will  justify  you  in  the 
verdict  given  in  by  the  foreman,  it  is  not  only  your  right,  but  your 
4uty,  to  dissent,  which  you  may  do  as  you  shall  be  separately  asked. 

Clerk.  Gentlemen,  you  will  have  the  goodness  to  pronounce 
your  verdict  separately,  whether  guilty  or  not  guilty,  as  your  names 
shall  be  called. 

James  Glass,  how  say  you  ? 

Mr.  Glass  answered,  Guilty,  but  recommended  the  prisoner  to 
the  mercy  of  the  court. 

Clerk.  Garrit  Van  Cleef,  how  say  you  ? 

Mr.  Fan  Cleef — Guilty. 

Clerk.  John  M.  Seaman,  how  say  you  ? 

Mr.  Seaman,  (after  mine  pause) — Mot  Guilty. 

Mr.  Href  man.  That  is  sufficient,  sir. 

The  jury  were  then  desired  to  retire,  and  reconsider  of  their 
verdict. 

Air.  Ballet  then  asked,  on  behalf  of  himself  and  his  fellow  jurors, 
■whether  the  jury  might  not  have  with  them  a  correct  minute  of 
the  testimony,  either  from  the  counsel  or  the  court,  as  there  were 
some  points  respecting  which  there  were  doubts  among  them  :  to 
which  it  was  answered  by  the  mayor,  that  the  court  would  assist 
them  as  far  as  it  could,  but  that  they  could  not  have  recourse  to 
the  minutes  of  the  counsel,  which  might  differ  one  from  the  other. 

The  juror  also  requested  a  further  explanation  on  these  two  points: 
1st.  As  the  indictment  charged  the  death  to  have  been  caused  by  a 
thrust,  and  there  was  some  evidence  from  which  it  might  be  infer¬ 
red  that  it  happened  by  the  deceased  falling  on  the  weapon,  if  the 
jury  shoulJ  be  of  opinion  that  it  happened  so,  or  in  any  other  way 


181 


than  by  a  thrust,  whether  that  would  be  a  variance  in  the  proof ;  and 
whether,  taking  that  as  the  fact,  it  would  sustain  a  verdict  of  guilty 
of  the  crime  charged  in  the  indictment  ? 

2nd.  Whether  the  prisoner  was  acting  unlawfully  when  he  re¬ 
turned  the  blow  of  the  deceased  ;  and  whether  they  were  so  to  un¬ 
derstand  the  charge. 

The  Mayor.  You  are  right,  sir,  in  so  understanding  it:  I  did  so 
charge  you,  gentlemen.  The  law  in  a  criminal  indictment  is,  that 
unless  a  man  is  assaulted  so  sev  erely  as  to  think  himself  in  danger 
of  life  or  great  bodily  harm,  it  is  an  unlawful  thing  to  return  the 
blow,  as  his  recourse  should  be  to  the  laws  of  his  country  for  re¬ 
dress.  But  I  do  not  think  the  case  turned  upon  that  ;  for  however 
the  Jaw  might  be  as  to  the  returning  a  single  blow,  it  was  not  lawful 
for  the  prisoner  to  follow  up  the  blow  when  the  deceased  was  re¬ 
treating. 

Mr.  Hoffman  wished  to  know  whether  that  was  the  opinion  of  the 
;ourt,  or  only  of  his  honour  the  Mayor. 

The  Meyc~  requested  the  other  members  of  the  court  to  give 
'.heir  opinion. 

Alderman  Allen.  I  do  not  agree  with  the  Mayor  entirely.  I  do 
lot  think  Mr.  Goodwin  was  acting  unlawfully  in  returning  the  blow, 
mt  1  do  think  it  was  unlawful,  when  the  deceased  was  retreating,  to 
ollow  it  up  as  he  did. 

Alderman  Thorp  assented  to  this  opinion. 

The  Mayor.  I  do  not  see  that  we  differ  very  materially. 

The  jury  thereupon  retired  ;  the  same  marshals,  together  with 
Ur.  Jacob  Hays,  the  high  constable,  being  sworn  as  before  to  take 
:harge  of  them. 


SATURDAY,  MARCH  18th,  1820, 
Half  past  1 1  o'clock,  P.  M. 


It  being  now  within  half  an  hour  of  the  legal  termination  of  the 
sessions,  the  court  sent  to  know  whether  the  jury  were  agreed  ; 
nd  being  informed  they  were  not,  they  were  sent  for,  and  return- 
d  into  court,  and  were  again  called  over  by  their  several  names,  and 
1!  answered. 

The  Mayor.  Gentlemen  of  thejurj',  the  court  have  received  in- 
irmation  that  you  are  not  yet  agreed  on  your  verdict :  is  it  likely 
lat  you  will  be  able  to  agree  within  half  an  hour,  which  is  the  la- 
jjst  period  to  which  the  court,  according  to  law,  can  prolong  its 
tting  ? 

A  juror.  There  is  not  the  least  possibility  of  our  agreeing. 

11 ie  Mayor.  Are  we  to  understand  that  sentiment  to  be  unani- 
tous  ? 

A  juror.  In  that,  may  it  please  the  court,  we  are  all  of  one  opin- 


The  Mayor.  Gentlemen,  this  is  an  unfortunate  circumstance  :  the 
nirt,  however,  think  that  they  have  exercised  their  power  of 
eeping  you  together  as  long  as  it  is  necessary  or  right ;  for  this 


182 


power  must  have  some  limit,  and  the  court  some  discretion  in  tli 
exercise  of  it,  otherwise  it  might  sometimes  prove  intolerable  t 
jurors.  1  his  court  has  its  authority  now  but  for  a  few  minutes 
and  considering  the  multitude  of  anxious  spectators,  and  the  time  c 
the  night,  it  might  not  be  prudent  to  suspend  this  proceeding  til 
the  very  last  moment.  The  court  regret  that  they  have  bee 
obliged  to  keep  you  so  long,  and  in  discharging  you,  think  it  a  dut 
to  thank  you  for  the  attention  you  have  shown,  and  the  services  yo 
have  rendered  during  this  painful  session.  Your  present  disagree 
mcnt  is  no  doubt  honest,  since  no  man  has  been  willing  to  sacritic 
his  duty  to  his  conscience. 

The  jury  were  now  discharged. 

MOTION  TO  BAIL. 

Mmro.  May  it  please  the  court.  I  now  renew  my  former  appli 
cation  that  the  prisoner  be  admitted  to  bail,  and  1  hope  there  cai 
be  no  doubt  that  he  is  entitled  to  it.  The  whole  evidence  hasbeei 
before  the  jury,  and  the}'  cannot,  upon  that  testimony,  find  bin 
guilty.  I  pray,  therefore,  that  he  may  be  bailed,  and  in  a  very  mi 
tigated  sum. 

Fan  JVyck.  I  cannot  consent  to  this  application,  not  only  bccaus 
it  is  a  surprise  at  this  moment  when  there  is  no  time  to  discuss  thi 
merits  of  it,  but  because  it  is  founded  upon  what  has  just  nov 
passed  in  the  court  ;  whereas  it  appears  to  me,  as  far  as  any  con 
elusion  can  be  drawn  from  the  circumstances,  it  must  be  rathe 
against  than  in  favour  of  the  prisoner.  The  jury  came  into  cour 
with  a  verdict  of  guilty  :  upon  a  scrutiny,  however,  it  appeared  tha 
the v  were  not  unanimous,  and  because  they  could  not  agree,  the} 
were  finally  discharged.  It  would  lead  the  court  too  far  at  this  lab 
hour  to  go  into  the  arguments  and  objections  upon  which  we  an 
certainly  entitled  to  be  heard. 

The  indictment  shows  that  there  is  a  probability  of  guilt.  Cat 
the  court  now  say  that  there  is  any  strong  probability  that  this  de 
fendant  will  be,  or  ever  ought  to  be,  acquitted  by  a  jury  ?  The 
death  of  the  man,  the  conflict  with  the  deceased,  the  means  of  hi.1 
coming  by  his  death,  alf  this  is  before  the  court,  and  upon  sue! 
ample  proof,  that  if  it  acts  upon  the  principles  which  have  alway 
governed  courts,  it  will  not,  I  think,  admit  this  prisoner  now  t< 
hail.  The  court  has  already  heard  and  examined  all  the  authorities 
it  would  be  supererogation  to  repeat  them,  and  needless  to  ciU 
ethers. 

Griffin.  At  this  late  hour,  and  fatigued  as  the  court  has  been,  1. 
should  not  willingly  enter  into  any  discussion  that  would  enhance 
the  difficulty  either  of  the  court  or  of  the  counsel.  On  the  formei 
motion  for  bail  I  cited  authorities  establishing  this  general  posi 
tion,  that  in  all  cases  where  the  prisoner  was  charged  with  felony  o 
any  description,  he  could  not,  by  the  law  of  the  land,  be  bailed 
unless  circumstances  existed  that  created  a  reasonable  presumptioi 
of  his  innocence,  and  that  the  law  required  his  person  for  security 
and  that  money  could  not  be  substituted.  I  established  that  posi 


183 


h  upon  authorities  going  back  above  two  hundred  years,  and  upon 
mciples  that  must  operate  in  all  civilized  communities.  The 
•  i j cl  jury  have  found  this  prisoner  guilty  of  a  felony.  Has  any 
lag  which  has  since  passed  negatived  that  charge  ? 

I'he  Mayor.  It  is  too  late  to  open  this  wide  field  of  dicussion  :  if 
t  your  part  you  go  into  the  merits  and  the  evidence,  the  other  side 
rst  have  liberty  to  answer,  and  the  night  is  too  far  spent. 

Jriffin.  I  will  then  submit  it  upon  this  single  inquiry  :  where  will 
1  court  find  one  circumstance  tending  to  show  that  the  prisoner 
siot  guilty  ?  If  the  presumption  of  his  innocence  does  not  nutu- 
ry'grow  out  of  the  testimony,  nor  can  be  inferred  from  no  one 
rt  of  it,  then  the  great  principle  must  govern.  There  is  no 
[■■son  for  letting  him  to  bail. 

Veils.  I  have  no  wish  to  prolong  this  discussion,  but  I  will  state 
,vat  I  think  conclusive,  that  the  application  was  refused  the  last 
:ttn,  upon  deliberate  argument  and  more  deliberate  adjudication  : 
tin  what  has  happened  since  1  *****  * 
ioffman.  Will  the  court  hear  more  than  two  counsel  on  a  side  ? 
Veils.  I  only  want  to  state  one  or  two  positions,  and  argue  no 
,'t.her.  I  should  have  finished  by  this  time  if  the  counsel  had  let 
ai  proceed.  The  causes  of  the  former  refusal  are  in  the  recollec* 
tin  of  the  court.  Has  any  thing  happened  to  change  the  grounds  ? 
Te  prisoner  has  been  brought  to  his  trial,  and  the  jury  have  not 
muitted  him.  At  the  very  least  then,  it  remains  as  indifferent  as 
bore  :ffhe  presumption  of  his  guilt  is  not  diminished,  nor  that  of 
hi  innocence  increased  ;  and  this  trial  cannot  operate  in  his  favour. 

1  ress  it  no  further  than  to  say,  that  it  is  as  if  no  trial  had  taken 
pke  :  and  then  how  does  this  application  differ  from  that  made  be- 
i’oi  the  trial,  when  upon  the  most  mature  deliberation  the  motion 
w  refused  ?  This  then  being,  as  to  the  present  question,  a  mere 
nijity,  what  other  reason  is  there?  where  is  the  delay  or  default 
or.he  part  of  the  people  ?  where  any  new  merits  on  the  part  of  the 
proner,  that  should  give  him  any  new  advantage  ? 

lunro.  The  case  certainly  stands  very  differently  now  before 
li  court,  from  what  it  did  the  last  time  it  was  moved.  I  then 
Tvved,  and  the  court  then  decided,  that  it  had  power  to  bail  :  but 
it  d  not  think  proper  to  exercise  that  discretion,  because  the  pi  i- 
*o?r  was  charged  with  murder  by  a  coroner’s  inquest.  I  then  cited 
auiorities  to  show,  that  where  there  is  no  charge  but  that  of  man- 
dighter,  the  court  that  has  power  to  try  or  discharge,  would  not 
■n  uch  a  case  refuse  to  bail.  Now,  that  the  coroner’s  inquest  is 
gi  n  up,  that  objection  falls  to  the  ground. 

(Vie  Mayor.  With  respect  to  the  law,  I  should  be  very  sorry 
no  to  recommence  an  argument  of  12  or  14  hours  duration.  Wo 
hay  the  statute  for  our  guide,  that  wherever  a  man  is  committed 
f oi petit  larceny,  or  merely  on  suspicion  of  a  felony,  this  court 
in;  admit  him  to  bail.  And  further  :  this  court  has  heretofore  ex¬ 
posed  an  opinion,  that  where  a  prisoner  of  this  court  is  charged 
wi  any  felony  which  it  is  competent  to  try,  it  will  use  its  discre¬ 
dit)  in  granting  or  refusing  to  bail.  But  this  discretion  is  not  ar 


181 


bitrary  :  it  would  be  then  despotism  and  tyranny.  There  must 
circumstances  to  justify  the  court  in  the  exercise  of  that  discrete 
ary  power.  Where  there  is  a  positive  charge  of  felony,  the  co 
or  judge  may  look  into  the  testimony  which  has  been  given  pi 
licly  to  a  jury,  and  if  there  appears  a  legal,  probable,  presumpti 
of  his  innocence,  they  may  bail  him.  Now  it  is  said,  that  the  prisi 
er  is  to  be  bailed  in  consequence  of  the  proceedings  of  this  jury 
think,  however,  that  they  do  not  alter  the  case  ;  and  it  would 
extraordinary  that  we  should,  from  what  has  passed  here  before 
draw  a  different  inference  from  what  we  did  antecedently.  Wi 
1  to  give  an  opinion  now,  1  could  only  say,  that  consistent -with  ( 
principles  of  law  which  ought  to  govern  the  case,  1  never  coi 
consent.  But  1  think  it  is  loo  unreasonable  at  this  moment,  f 
under  this  pressure  of  time  and  occasion,  to  call  upon  the  cour  t 
a  decision  which  might  oblige  them  to  enter  into  another  Inborn 
investigation.  There  is  the  less  necessity  for  it,  as  the  prisoner 
entitled  to  his  habeas  corpus  before  a  judge  of  the  Supreme  Cot 
or  before  any  officer  or  commissioner  representing  a  judge  of  t 
Supreme  Court.  The  depositions  now  before  the  court  may  be  p 
duced  before  the  magistrate  to  whom  this  application  may  be  mai 
I  therefore  give  my  opinion,  that  this  application  ought  not  to 
complied  with. 

Alderman  Allen.  I  differ  with  the  Mayor.  I  think  we  are  co 
petent  to  bail.  I  view  this  case  as  I  would  one  of  petit  larcen 
and  being  competent  to  bail,  1  consider  the  case  so  far  altei 
since  the  last  application,  as  that  we  may  change  our  former  det< 
ruination,  though  I  do  not  wish  to  draw  any  pointed  inference  as 
the  guilt  or  innocence  of  the  prisoner. 

Alderman  Thorp.  I  consider  the  cause  of  our  former  refusal, 
not  now  existing  in  the  same  extent.  The  reason  of  our  Join 
refusal  was  a  coroner’s  inquisition,  which  is  no  longer  in  the  w 
since  the  district  attorney  has  declared  that  he  does  not  mean 
try  the  prisoner  upon  it  :  and  since  we  before  refused  to  bail  i 
prisoner,  he  has  been  a  month  longer  in  gaol  :  for  these  reason 
am  of  opinion  that  he  should  now  be  admitted  to  bail. 

Alderman  Morss,  who  had  taken  his  seat  this  day  on  the  ben< 
was  of  opinion  with  the  Mayor.  The  court  being  thus  divided,  ti 
motion  was  lost. 

And  the  court  was  adjourned  till  the  first  Monday  of  April  1 
lowing. 


MONDAY,  MARCH  20,  1820. 

.Mayor's  Office,  City  Hall 


This  day  the  prisoner  was  brought  before  his  honour  the  May 
at  his  public  office,  on  a  writ  of  habeas  corpus,  allowed  by  i 
honourable  Peter  A.  Jay,  Recorder  of  the  City  of  New-lork, 
turnable  before  the  honourable  Cadwallader  D.  Golden,  Mayor,  lj 
And  the  writ  being  produced  by  the  officer,  the  Mayor  observ, 
that  there  was  no  return  endorsed  upon  it.  He  suggested  the  fc( 


185 


I  the  return,  and  the  keeper  of  the  City  Prison,  Mr.  Garrit  Sickles, 
line  and  endorsed  his  return  thereon,  that  the  cause  of  the  deten- 
tm  of  the  prisoner  appeared  by  the  schedules  annexed  :  which 
fhedules  were,  the  commitment  by  the  Mayor,  on  the  21st  of 
hcembor,  for  the  murder  of  James  Stoughton,  and  that  of  the 
(n  oner  on  the  24th  of  December,  on  the  same  charge  ;  and  the 
vit  was  marked  “  By  the  statute .” 

Tlie  Mayor  then  observed,  that  the  writ  being  thus  marked  by 
tb  statute,  appeared  not  to  be  a  common  law  writ  ;  and  suggested 
nether,  as  the  return  showed  that  the  prisoner  was  committed 
p  felony  plainly  expressed  in  the  warrant  of  commitment,  the  ex- 
|[)tion  iii  tlie  statute  did  not  apply,  and  forbid  his  further  inter¬ 
fence  ;  which  must  depend  upon  his  having  power  to  reject  the 
vrds  “  by  the  statute and  consider  it  as  having  issued  at  common 
1:/,  which  he  seemed  inclined  to  think  he  might  do. 

Another  question  was,  whether  the  Mayor  of  the  city  of  New- 
irk  had  those  powers  which  are  given  to  judges  of  the  common 
)  as,  by  the  act  passed  April  20,  1818,  vesting  certain  powers  in 
|  judges  of  the  courts  of  common  pleas.  (L.  N.  Y.  vol.  4.  c ,  173.) 
And  supposing  the  Mayor  had  by  that  act  the  powers  of  a  judge 
o  he  supreme  court,  whether  he  coulJ,  in  vacation,  hail  a  person 
Cinmitted  for  felony,  on  a  habeas  carpus  issued  at  common  law. 

And  lastly,  whether  the  Recorder,  or  any  other  magistrate,  could 
sie  a  habeas  corpus  at  common  law,  returnable  before  any  other 
Bjistrate  than  himself. 

The  counsel  professing  they  were  not  prepared  to  discuss  these 
•j  -.stions,  the  Mayor  said  he  would  adjourn  the  hearing  till  tlie 
art  morning  ;  and  in  the  mean  time  examine  the  law  on  these 
pints,  and  be  better  prepared  to  derive  assistance  from  the  argu- 
b  its  the  counsel  might  then  think  proper  to  offer. 

’he  prisoner’s  counsel  said  they  wished,  as  far  as  it  could  be 
iciplied  with,  to  dispense  with  forms,  and  have  a  decision  on  the 
■i  it.  They  also  asked  whether  his  honour  the  Mayor  would  ex- 
fat  all  the  evidence  of  what  passed  before  him  at  the  trial  to  be 
lg  n  submitted  to  him. 

he  Mayor.  I  should  wish  every  question  decided  on  its  merits  ; 
Hi  though  I  might  despise  mere  forms,  yet  l  must  be  responsible 
o  my  acts :  and  if  it  be  inquired  hereafter  why  I  bailed  or  refused 
Ojiail,  it  may  be  asked  upon  what  evidence  1  proceeded.  Now 
Emmet’s  notes  may  be  one  way,  those  of  another  counsel  may 
Indifferent — mine  may  be  one  way,  and  those  of  the  Aldermen 
m  her  ;  and  a  judge  might  as  well  tto  at  once  upon  his  own  recol- 
Ilon. 


p\  Munro  proposed  that  the  counsel  on  both  sides  should  con¬ 
ic  to  take  the  mayor’s  notes  as  the  true  statement  of  the  facts. 
he  Mayor  said  he  would  have  the  less  objection  if  the  statute 
rs  the  matter  to  the  district  attorney,  and  he  consents. 

"\an  Wyck,  District  Attorney.  This  depends  upon  a  preliminary 
Eftion  suggested  by  tlie  mayor  ;  and  I  must  first  know  whether 
■presence  is  necessary.  If  this  he  a  proceeding  before  a  judge, 

24 


as  a  commissioner,  I  have  no  business  here;  I  am  only  e 
filled  to  notice,  in  cases  under  the  statutes  which  give  the  pmv  • 
•  it  bailing  to  the  lirst  judge  of  the  county,  (see  the  habeas  corp 
act,  1  R.  L.  356,  and  the  act  concernin'!  the  Courts  of  Comm' 
I'leas  and  General  Sessions  of  the  Peace  in  the  several  counties 
this  state,  2  R.  L.  148.) 

The  motion  was  adjourned  until  the  following  morning. 

It  being  thus  adjourned,  the  mayor  rose  frouf  his  chair,  wishing 
to  be  understood  that  he  no  longer  spoke  as  a  magistrate  acti 
otiiciallv,  and  suggested  whether  it  would  not  be  more  advisabl 
under  all  the  circumstances,  to  go  to  Albany  and  apply  to  a  jud 
of  the  supreme  court  ;  which  was  approved  of  by  the  counsel,  a 
the  motion  discontinued.  An  application  was  accordingly  made  I 
lus  honour  Chief  Justice  Spencer,  at  Albany,  who,  as  the  report 
has  been  informed,  recommended  the  deferring  of  the  application  I 
bis  arrival  in  the  city  of  New-York,  where  he  was  to  hold  the  S 
tings  before  May  Term,  on  the  first  Monday  of  April.* 

The  prisoner  was  accordingly  brought  before  him,  at  his  Chai 
bers  in  Broadway,  on  Monday  the  third  day  of  April,  whe 


*The  following  abstract  of  the  several  statutes  conferring  the  povet 
of  Judges  of  the  Supreme  Court  of  the  State  of  Next'-  York  on  in 
rior  magistrates,  may  throw  light  upon  the  ubove  discussion,  a 
be  useful  to  the  students  of  our  laws. 

Hu  the  “  act  concerning  the  Supreme  Court,"  (1  P.  /,.  518.  §  11.)  ltecorden 
New  -York,  Albany  and  Hudson,  are  equally  empowered  with  Justices  ofthe  Supre 
Court,  lo  act  in  all  cases,  both  civil  and  criminal,  in  like  manlier  as  the  said  Justi 
may  do  out  of  coui  t. 

jty  Section  1C  — Any  Judge  of  any  court  of  Common  Pleas,  and  any  Mayor,  n 
take  affidavits  to  be  read  in  the  Supreme  Court. 

By  Section  13. — A  Judge  of  the  Court  of  Common  Pleas  mar  take  recognixanc  j 

bail. 

!?v  an  “act  to  prevent  unjust  imprisonment,  by  securing  the  benefit  of  the  tori  I 
habeas  corpus (I  It.  T,.  354.  see  u2  )  the  First  Judge  of  the  Court  of  Conm  j 
Pleas  of  am  county  of  this  state,  has  power,  w  ith  the  corsent  of  the  Attorney  ( j 
neral  or  District  A  ttorney,  to  let  to  bail  as  a  Judge  of  the  Supreme  Court  might  ] 
and  for  such  purpose,  to  grant  writs  of  habeas  corpus. 

The  “act  concerning  the  Courts  of  Common  1‘teas  and  General  Sessions  of  I 
Peace, in  the  several  counties  of  this  State,”  (1  It  L.  14..  sec.  14.)  contains  j 
like  provision  in  the  same  terms. 

Uv  the  “ret  to  vest  certain  powers  in  certain  Judges  of  the  Courts  of  Comr.' 
Pleas,  and  for  other  purposes,”  (4  L  JV*.  1".  c  1 73  see.  1  )  any  Judge  of  the  Co;' 
of  Common"  Pleas  in  this  stale  of  the  degree  of  Counsellor,  may  exercise  all  the  pej 
ers  of  commissioners  appointed  pursuant  to  the  act  to  appoint  commissioners  to  r  >J 
form  certain  duties  of  Judges  of  the  Supreme  Court,  passed  25th  February,  IS,; 
and  all  other  duties  which  the  Commissioners,  by  any  subsequent  act,  are  autbori  l 
:o  perform.  * 

The  act  to  appoint  Commissioners  to  perform  certain  duties  of  Judges  of 'j 
Supreme  Court,  (1  Jl  T.  32'..)  being  the  act  referred  to  in  the  foregoing  scctioii 
i  In'  a"  of  1818,  authorizes  the  appointment  of  a  Commissioner  lor  each  of  the  Co  J 
ties  ot  Oneida  and  Ontario,  who  are  authorized  to  perform  all  the  duties  of  a  Judpfl 
tli.’ Supreme  Court  which,  according  lo  the  practice  ol  the  said  Court,  the  Jmlll 
thereof  may  perform  out  of  Court  in  all  cases,  both  civil  and  criminal ;  to  allow  «  " 
of  habeas  corpus,  and  certiorari  ;  to  execute  the  absconding  and  absent  debtors’  J 
and  tiie  insolvent  act,  in  like  manner  as  the  Judges  ofthe  Supreme  Court  might  a!  * 
execute  tlie  sume. 


187 


Messrs.  Munro,  Hoffman,  Ogden,  and  W.  Price,  appeared  on  be¬ 
half  of  the  prisoner,  and  Messrs.  Wells,  Gridin  and  Blake,  on  be¬ 
half  of  the  people  ;  and  his  honour  the  Chief  Justice  delivered  the 
following  opinion  : 

CHIEF  JUSTICE  SPENCER’S  OPINION. 


The  People 
vs. 

Robert  M.  Goodwin. 


Habeas  Corpus — at  Chambers  in  the 
Citij  of  New-  York. 


The  return  to  the  writ  sets  forth  two  causes  of  detention  ;  hut  it 
has  been  admitted  by  the  district  attorney,  that  the  prisoner  is  to  be 
considered  as  detained  only  on  a  charge  of  manslaughter.  It  ap¬ 
pears  that  he  has  been  indicted  lor  that  offence,  and  has  been 
brought  to  trial  in  the  Sessions  in  this  city  :  that  the  trial  was  con¬ 
tinued  for  five  days,  and  that  the  jury,  after  having  had  the  cause 
under  consideration  for  about  twenty-two  hours,  wer<?  finally  dis¬ 
charged  by  the  court,  the  jury  declaring  it  as  their  unanimous 
opinion,  that  there  was  no  expectation  of  their  being  able  to  agree. 
It  appears  that  after  the  jury  had  been  out  about  seventeen  hours, 
they  came  into  court,  and  by  their  foreman,  declared  themselves 
agreed  on  their  verdict,  and  that  they  found  the  prisoner  guilty,  and 
recommended  him  to  the  mercy  of  the  court ;  but  on  being  polled, 
the  third  juror  dissented  from  the  verdict. 

The  district  attorney  avowed  his  readiness  to  proceed  to  trial 
again  in  the  Sessions,  within  two  days  ;  but  stated,  that  if  it  was  the 
wish  of  the  prisoner,  he  would  remove  the  indictment  and  proceed¬ 
ings  by  certiorari  into  the  Supreme  Court.  The  prisoner’s  coun¬ 
sel  declared  their  desire  that  the  certiorari  should  issue  ;  and  also 
stated  it  to  be  their  intention  to  insist  before  that  court,  that  the 
prisoner  could  not  be  tried  again  for  the  same  offence,  the  jury  hav¬ 
ing  been  discharged  without  their  consent.  These  are  all  the  facts 
to  guide  my  discretion  in  determining  the  question  whether  the 
prisoner  is  entitled  to  be  bailed  or  not.  And  in  deciding  this  ques¬ 
tion,  little  or  no  aid  can  be  derived  from  the  course  of  proceedings 
in  this  state  ;  the  point  has  never  been  discussed  or  decided  at  the 
bar,  and  the  proceedings  before  the  judges  at  Chambers,  have  never 
been  collected  or  preserved. 

With  regard  to  the  power  of  a  Judge  of  the  Supreme  Court,  to 
allow  the  writ  of  habeas  corpus  ad  subjiciendum  in  cases  not  within 
ji  the  3 1  st  Charles  2d,  ch  2d.  (of  which  our  statute  is  nearly  a  tran¬ 
script)  and  to  bail  ;  the  counsel  for  the  prosecution  distinctly  ad¬ 
mitted  the  existence  of  such  a  power.  But  I  am  unwilling  it  should 
rest  on  admission — the  opinion  of  the  twelve  judges  in  England,  on 
questions  propounded  to  them  by  the  House  of  Lords  in  1757,  is  the 
best  and  highest  evidence  of  this  power.  And  as  I  understand  their 
opinions,  which  will  be  found  in  Gwiliim’s  Bacon,  Title  Habeas 
Corpus,  they  were  unanimously  of  opinion,  that  since  the  statute  of 
31  Charles  2d,  ch.  2d,  and  as  the  law  then  stood  upon  the  practice 
of  the  King’s  Bench,  writs  of  habeas  corpus  ad  subjiciendum  might 


Issue  m  all  cases  by  a  flat  from  a  judge  oil  the  King’s  Bench,  *e-  I 
turn  able  before  himself.  Seven  of  the  judges  are  explicit  on  the  j 
question,  that  t he  power  of  a  judge  of  the  King’s  Bench,  in  award-  I 
ing  the  writ,  extends  to  all  cases  not  within  the  statute.  The  doubts  1 
which  have  been  entertained,  whether,  on  the  return  of  the  writ,  1 
the  judge  was  not  bound  by  the  return,  so  that  the  facts  anil  cir-  * 
cuinst  inces  of  the  case  were  not  examinable  beyond  the  return, 
have  been  removed  by  the  act  amending  the  habeas  corpus  act,  pass-  > 
ed  the  £lst  of  \pril,  1818  ;  and  it  cannot  now  be  doubted  that  a 
judge  in  vacation  may  examine  into  the  facts  contained  in  the  re-  1 
turn,  and  into  the  cause  of  the  confinement  and  restraint. 

Manslaughter  is  a  felony,  and  it  is  punishable,  on  conviction,  by  | 
imprisonment  in  the  state  prison  for  a  term  not  less  than  three  years,  I 
nor  more  than  fourteen  years.  And  it  has  been  argued,  that  it  being 
a  felony  thus  punishable,  it  is  a  case  in  which  the  party  accused  | 
ought  not  to  be  hailed,  unless  it  he  shown  that  there  is  a  strong  pre-  " 
sumption  of  innocence.  1  am  snii-fied  that  the  prisoner  cannot  de-  ; 
aiand  it  as  a  matter  of  right,  to  be  admitted  to  bail,  and  that  it  is  a 
question  resting  iu  the  sound  legal  discretion  of  the  judge  awarding 
the.  writ. 

Hawkins,  b.  2d,  ch.  15.  §  40  and  80,  lay's  down  the  law  to  be,  j 
that  if  it  stands  indifferent  whether  a  person  charged  with  a  felony  1 
Is  guilty  or  not,  he  ought  to  be  bailed  ;  and  that  even  in  capital  cases',  i 
Where  there  is  any  circumstance  to  induce  the  court  to  suppose  he 
may  be  innocent,  they  will  bail — and  that  the  judges  will  in  general 
exercise  the  power  of  bailing  in  favour  of  a  prisoner  in  every  case 
not  capital,  though  they  will  not  exercise  it  when  the  pri-oner  is 
notoriously  guilty,  by  his  own  confession  or  otherwise,  without  the  , 
existence  of  some  special  causes  to  induce  it. 

There  are  several  cases  in  which  persons  charged  with  man¬ 
slaughter  have  been  bailed,  where  there  has  been  no  presumption  ■ 
of  innocence.  Thus  in  Rex  v.  Dalton,  (2  Str.  911)  the  defendant 
was  committed  on  a  coroner’s  inquest  for  manslaughter,  and  was 
brought  before  Lord  Raymond,  chief  justice,  on  habeas  corpus,  at 
his  chambers.  He  held  that  if  the  depositions  show  that  the  offence  i 
was  murder,  he  would  not  bail  ;  but  if  it  amounted  only  to  man¬ 
slaughter.  he  would  bail ;  and  he  bailed  the  prisoner.  So  also  in 
Rex  v.  Magrath,  2  Sir.  1242,  the  defendant  was  committed  for 
manslaughter,  and  it  appearing  to  be  no  more  upon  the  depositions 
taken  before  the  coroner,  the  Court  of  King’s  Bench  admitted  him 
to  bail.  In  Lord  Mohnn's  case,  which  was  before  Lord  Holt,  at 
Chambers,  (1  Salk.  104)  lie  held,  that  if  a  man  he  found  guilty  of 
murder  by  the  coroner's  inquest,  he  is  sometimes  bailed,  because 
the  coroner  proceeds  upon  depositions  taken  in  writing,  which  may  1 
be  looked  into  ;  otherwise,  if  a  man  be  found  guilty  of  murder  by 
a  grand  jury,  then  the  court  cannot  take  notice  of  their  evidence, 
which  they  are  bound  to  conceal  ;  and  it  appears  by  the  cases  be¬ 
fore  cited  from  Strange,  that  Lord  A'lobun  was  bailed  first  by  IlolR 
and  afterwards  by  the  Lords,  after  an  indictment  for  murder. 


180 


!n  some  later  cases,  bail  has  been  refused  when  the  offence  was  a 
felony,  punishable  with  transportation  ;  as  in  2d  D.  and  E.  77,  and 
3d  East,  157,  and  there  is  therefore  no  fixed  or  certain  rule  in  cases 
of  felony,  each  particular  case  depending  on  its  peculiar  circum¬ 
stances.  The  object  and  end  of  imprisonment  before  trial  and  con¬ 
viction,  is  to  secure  the  forthcoming  of  a  person  charged  with  the 
commission  of  a  crime  ;  and  it  is  never  intended  as  any  part  of  the 
punishment ;  for  until  the  guilt  of  the  party  be  legally  ascertained, 
there  is  no  ground  for  punishment,  and  it  would  be  cruel  and  un¬ 
just  to  inflict  it.  The  laws  of  every  free  government  estimate  per¬ 
sonal  liberty  as  of  the  most  sacred  character,  and  it  ought  not  to  be 
violated  or  abridged  before  trial ;  but  in  cases  where  there  are 
strong  presumptions  of  guilt,  and  although  the  nature  and  kind  of 
punishment  which  awaits  those  whose  guilt  is  legally  established, 
does  not  alter  the  turpitude  of  the  offence,  it  must  enter  into  the 
consideration  of  the  question  of  bail  ;  for  if  the  punishment  would 
be  a  pecuniary  infliction,  then  bail  in  more  than  the  amount  of  the 
probable  fine,  answers  every  purpose  :  if  the  punishment  be  death 
or  corporal  imprisonment,  a  consciousness  of  guilt  would  probably 
induce  to  flight,  and  an  evasion  of  the  punishment  ;  and  in  admitting 
to  bail,  therefore,  regard  must  be  had  to  the  probable  guilt  of  the 
party,  and  the  nature  of  the  punishment  denounced. 

It  appears  to  me,  that  from  the  facts  before  me,  the  conclusion  is 
inevitable,  that  it  is  quite  doubtful  whether  the  prisoner  is  guilty  ; 
and  I  think  it  stands  indifferent  whether  he  is  so  or  not.  After  a 
long  and  laborious  trial,  the  jury  have  not  been  able  to  agree,  and 
what  proportion  of  them  were  for  convicting,  and  what  for  acquitting, 
has  not  been  shown.  No  inference  can  be  drawn  from  the  fact  that 
the  foreman  pronounced  a  verdict  which  was  dissented  from  by  the 
third  juror,  that  all  the  other  jurors  were  for  convicting  the  prison¬ 
er  ;  and  it  may  well  be  that  a  bare  majority  of  the  jury  agreed  to 
the  verdict  as  announced  by  the  foreman  ;  and  I  perceive  that  all 
the  jurors  viewed  the  case  as  of  a  mitigated  character,  by  their  re¬ 
commendation  of  the  prisoner  to  mercy.  I  must  presume  that  the 
jurors  were  impartial,  and  that  their  final  disagreement  proceeded 
irom  a  conscientious  difference  in  opinion  as  to  the  prisoner’s  guilt ; 
and  1  am  therefore  bound  to  conclude,  that  the  prisoner  may  be  in¬ 
nocent  of  the  offence.  In  such  a  case,  as  I  understand  the  law,  he 
is  entitled  to  be  bailed,  if  he  can  give  it  in  an  amount,  and  by  persons 
of  sufficient  ability,  affording  a  reasonable  expectation,  from  the  im¬ 
pending  forfeiture  of  the  recognizance,  that  he  will  appear  and 
stand  trial. 

It  was  urged  that  the  adoption  of  such  a  principle  would,  in  its 
operation,  induce  to  the  bailing  of  such  persons  as  were  either  af¬ 
fluent  themselves,  or  had  rich  and  influential  triends  ;  whilst  it  would 
leave  those  who  vvere  poor  and  friendless  in  prison.  Such  may  be 
the  consequence,  but  it  by  no  means  proves  the  impropriety  of  the 
procedure.  The  rule  is  adapted  to  all  who  can  comply  with  its 
terms  ;  and  it  is  the  misfortune  of  those  who  cannot  give  the  neces¬ 
sary  security.  |n  arrests  for  debt,  bail  must  be  given,  or  imprison- 


190 


ment  is  the  consequence  :  and,  although  we  may  regret  the  inahiii 
ty  to  give  it,  we  nevertheless  approve  of  the  law  requiring  security 
1  abstain  from  expressing  arty  opinion  on  the  suggestion  of  tin 
prisoner’s  counsel,  that  he  is  not  liable  to  be  tried  again  for  th< 
offence  imputed  to  him  ;  that  question  will  hereafter  be  consideret 
by  the  Supreme  Court. 

On  the  whole,  I  think  this  a  case  in  which  it  would  be  a  discree 
and  sound  exercise  of  the  powers  with  which  1  am  invested  to  ad  mi: 
the  prisoner  to  bail  ;  himself  in  $20,000,  and  four  sureties  of  com 
petent  ability,  in  $5000  each,  for  his  appearance  at  the  next  Maj 
term  of  the  Supreme  Court. 

The  bail  was  accordingly  given,  and  the  prisoner  was  discharged 

The  prisoner  was  recognized  to  appear  in  the  Supreme  Couri 
on  the  first  Monday  of  May,  himself  in  $20,000,  and  four  sureties, 
to  wit.  Commodore  Chauncey,  Commodore  Evans,  Thomas  Morris, 
Esq.  Marshal  of  the  Southern  District  of  New-York,  and  Edward 
Price,  Esq.  in  $5000  each, 

MONDAY,  MAY  1,  1820. 

Supreme  Court. 

This  being  the  first  day  of  the  term  of  the  Supreme  Court,  the 
defendant  appeared  there  pursuant  to  his  recognizance.  It  was 
understood  that  his  counsel  meant  to  move  for  his  discharge,  and 
those  for  the  prosecution  to  move  for  his  trial  at  the  bar  of  the 
<sourt. 

Mr.  Van  Wyck,  district  attorney,  moved  for  a  day  to  bring  on  the 
argument,  it  being  proposed  to  bring  it  on  upon  a  case  to  be  made. 
It  appeared  that  there  were  other  cases  in  which  indictments  had 
been  removed  into  this  court  by  certiorari. 

His  honour  the  Chief  Justice  wished  the  counsel  to  consider 


whether  this  court  had  not  power  to  send  this  cause  to  be  tried  at 
the  Oyer  and  Terminer,  by  the  judge  who  was  to  hold  the  sittings, 
as  the  public  expectation  would  be  much  disappointed  if  a  great 
part  of  the  term  should  be  taken  up  with  a  trial  at  the  bar.  And  if 
this  could  be  done,  that  the  papers  need  not  be  filed  till  new  recog¬ 
nizance  be  taken  to  appear  at  the  Oyer  and  Terminer. 

The  court  appointed  Monday  the  eighth  inst.  for  the  hearing  of 
the  motion. 


191 


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INDEX. 


assault. 

A  mere  assault*  unless  with  a  weapon 
ely  to  cause  death,  will  not  justify  or 
Meuse,  homicide,  175. 

Where  the  party  assailed  could  have 
japed,  the  killing  though  nnpremedita- 
vl,  will  he  manslaughter,  175. 
jS'ott  assault  demesne. — Why  it  excu- 
in  civil  actions,  and  not  on  indiet- 
rnts,  171. 

IvVhat  amounts  to  an  assault,  13. 

When  it  is  unlawful  to  return  the  blow, 

1U 

AVERMENT. 

—Material  must  he  strictly  proved  on 
i  ictment  for  homicide,  121. 

That  Prisoner  gave  the  first  assault  is  a 
rteria!  averment,  121. 

\n  allegation  of  a  stab  or  thrust  not 
s  ported  by  proof  of  another  kind  of 
d  th,  122. 

n  the  “  fury  of  his  mind,”  how  far  it 
inlies  voluntary-action,  127. 

'he  words,  “  strike  or  stab,”  how  far 
n:erial,  124. 

fercussit  how  far  a  word  of  art  and 
n.erial,  122. 
ee  Evidence. 


How  far  it  controuls  the  laws  or  con¬ 
stitutions  of  the  States,  10,  11.  19  24.  27. 

Tenth  and  eleventh  articles  of  amend¬ 
ments  considered,  19. 

CORONER. 

Inquisition  of — defined,  9. 

Where  his  inquisition  to  be  returned, 
4.  8.  20. 

How  far  considered  as  an  indictment, 
4,  5.  8.  32. 

How  far  the  Court  of  Sessions  can  no¬ 
tice  it  when  wrongfully  returned  there, 
or  otherwise,  27  31,  32,  33. 

Whether  a  defendant  can  be  tried  on 
it,  27. 

Whether  the  Court  where  it  is  returna¬ 
ble,  is  bound  to  proceed  on  it,  1 10. 

Course  of  proceeding  where  there  is 
both  an  inquisition  and  indictment,  10.  18. 
20.  22.  32.  44. 

Judges  will  look  into  the  depositions 
with  a  view  to  bail,  12.  20.  23. 

The  reasons  thereof,  22. 

DOUBTS. 

— In  criminal  cases,  how  far  they  should 
acquit.  111.  122. 


BAIL, 
listory  of,  13. 

'n  a  charge  of  manslaughter  not  de 
,?/  \  7.  13.  29. 

Iliscretion  of  the  Judge,  14,  15.  21,  22. 
2-29. 

loney  not  a  substitute  for  the  person, 
1417  See  Chief  Justice’s  opinion,  187. 

—  Authorized  by  statute,  where  the 
eli-ge  is  for  felony,  27. 

lower  to  bail,  incident  to  that  of  try- 
inpr  discharging,  29,  30. 

elay  of  the  prosecutor,  when  it  enti- 
dc  he  prisoner  to  be  bailed,  30  to  33. 

lisagreementofthejury  on  being  poll- 
edifter  a  verdict,  with  recommendation 
to  jercy,  delivered  by  the  foreman,  but 
no-ecorded — how  far  it  may-  influence 
tli  liscretion  of  the  judge  ou  application 
to  til,  182. 

e  habeas  corpus. 


ii 

me 

St: 


CONSTITUTION, 
bether  the  fifth  article  of  atnend- 
s  to  the  constitution  of  the  United 
is  excludes  trials  on  inquisitions,  4. 


EVIDENCE. 

In  homicide,  the  manner  of  the  death 
to  be  proved  as  laid,  98.  121,  122.  162. 

An  allegation  of  striking,  slabbing,  &c. 
must  be  proved  by  a  stroke  or  blow  of 
some  kind.  Ibid. 

Of  a  slab  with  a  sword,  supported  by 
proof  of  prisoner’s  having  used  a  sword 
unlawfully,  and  death  occasioned  by  it, 
though  not  in  prisoner’s  hand  at  the  mo¬ 
ment  of  the  death,  178,  179. 

Whether  proof  of  previous  malice  ex¬ 
trinsic,  and  not,  part  of  the  res  ffesta,  is 
admissible  on  indictment  for  manslaugh¬ 
ter,  100— 1,  2,  3. 

Positive  testimony  of  few  witnesses, 
outweighs  negative  of  many,  167. 

Witnesses,  to  relate  facts,  not  give  opi¬ 
nions,  94. 

Physicians  examined  as  experts,  their 
opinions  only  regarded  when  within  the 
scope  of  professional  skill,  60.  73.  96. 

bee  Averment. 

HABE\S  CORPUS. 

When  a  writ  is  marked,  “by  the 
statute,”  whether  those  words  can  be  re- 


194 


INDEX. 


jected,  and  the  judge  consider  it  as  issued 
at  common  law,  185. 

Whether  the  Mayor  of  New -York  has 
the  power  given  bv  statute  to  Judges  of 
Common  Pleas  Ibid. 

Can  he  on  habeas  corpus,  at  common 
law,  in  vacation,  bail  one  committed  lor 
felony.  Ibid 

Can  the  Mayor,  Recorder,  or  other 
Magistrate,  issue  a  habeas  corpus  at  com¬ 
mon  law,  returnable  before  any  other 
Magistrate.  Ibid. 

When  District  Attorney  to  have  no¬ 
tice,  186. 

See  Bail. 

HOMICIDE. 

When  justifiable — when  excusable,  109, 
170. 

Law  of — same  as  before  April  1 9th, 
1775,  and  as  at  common  law,  178. 

The  killing  once  proved,  defendant 
must  show  his  justification  or  excuse,  44, 
103.  I  t5.  120.  148. 

If  the  act  be  malum  in  se,  murder  or 
manslaughter,  according  to  the  circum¬ 
stances,  105. 

If  the  prisoner  wasengagaged  in  a  mere 
trespass,  manslaughter,  lfin  a  felonious 
act,  murder.  Ibid. 

If  w  anton,  without  design,  manslaugh¬ 
ter.  Ibid. 

If  from  preconceived  malice  or  revenge 
in  cold  blood,  murder,  106. 

If  from  sudden  transport  of  passion,  or 
heat  of  blood,  or  upon  sudden  combat — 
manslaughter,  106. 

If  with  intent  to  beat,  but  not  kill,  mur¬ 
der,  or  manslaughter,  according  to  cir¬ 
cumstances,  106. 

Party  using  an  unlawful  w  eapon,  does 
it  at  his  peril,  ibid 

Accident  no  defence,  if  the  slayer  was 
acting  in  violation  of  the  law.  148. 

Chance-medley,  or  se  defendendo,  only 
available  when  there  is  great  bodily  fear, 
172. 

And  the  party  should,  w  here  possible, 
retreat,  172 — 3. 

Where  the  combating  is  other  than  in 
self-defence,  the  killing  not  excusable, 
but  held  manslaughter,  110. 

Self-defence,  first  law  of  nature.  Ibid. 

Where  it  justifies.  Ibid. 

How  far  there  can  be  crime  without 
latent.  Ibid. 

Upon  provocation  by  mere  words,  al¬ 
ways  murder,  45. 

See  Provocation  and  A  ssault. 

- Justifiable  by  command,  or  per¬ 
mission  of  the  law,  1 69. 

By  permission  for  the  advancement  of 
justice — as  to  prevent  escape,  quell  a 
riot,  or  prevent  certain  causes  not  other¬ 
wise  to  he  prevented,  169. 

Excusable — with  or  without  the  will  of 
the  slayer,  170. 


If  involuntary  and  by  misadventur 
the  act  must  he  lawful,  170. 

Misadventure  always 6'ipposes  the  pa 
tv  engaged  in  a  lawful  act.  Where  it 
unlawful,  tliough  the  death  be  uninte 
tional  and  accidental,  it  is  manslauglitc 
Necessity  no  excuse,  where  it  is  of  il 
party’s  own  creating,  171. 

INDICTMENT. 

Defined,  8. 

Rule  of  proceeding  where  there  is  : 
inquisition  of  murder,  and  indictment  t 
manslaughter,  10. 

—  Must  stale  the  manner  of  the  death, 11 

See  Averment. 

INQUISITION. 

See  Coroner. 

JUSTIFIABLE. 

See  Homicide. 

JURY  AND  JURORS. 

A  ballot  once  draw  n  cannot  be  retur 

ed,  36. 

Challenges  to  the  polls  for  favour 
practice  relative  to,  from  36  to  41. 

Jurors  allowed  to  communicate 
emergencies  with  family  orclerks  in  op 
court,  by  consent  of  parties,  86.  89.  98 

In  criminal  cases,  judges  of  law  a 
fact,  168. 

Not  allowed  a  copy  of  minutes  of  t 
testimony  180. 

Discharged  after  a  trial  of  five  days,  a 
being  out  22  hours,  it  being  within  a  fi 
minutes  of  the  legal  termination  of  t 
Session,  182. 

MERGER  OF  A  CRIME. 

Whether  manslaughter  is  merged 
the  charge  of  murder,  2.f. 

MANSLAUGHTER. 

- Definition  of — must  be  looked 

iu  the  common  law,  168,  169. 

- Defined,  81.110. 125. 12S.16U 

- Nature  and  extent  of,  15.  21. 

-  Punishment  of,  7. 

- How  punished  here  and  in  Ei 

land,  80.  127. 

Argument  therefrom,  and  observata 
thereon,  80.  168. 

-  On  indictment  of — -jury  may  6 

manslaughter,  though  the  evidence  sin 
it  murder,  44. 

Whether  the  killing  must  be  volur 
ry,  81.  HO.  1.4. 

That  it  need  not,  161.  164. 

— Is  either  voluntary,  upon  sudden  lit. 
or  involuntary,  but  in  commission  of  i 
unlawful  act,  174. 

Whether  it  must  he  wilful  as  well 
unlawful,  124.  140. 

English  law  thereon,  applied  and  • 
served  upon,  195.  127,  128,  129. 

If  the  slayer  was  acting  unlawfully  1 
is  manslaughter, though  unintentional,  1* 


INDEX. 


195 


OYER  AND  TERMINER. 

Its  jurisdiction,  18.  23,  26. 

PRESUMPTION. 

Of  innocence,  when  and  how  applied, 
26.  30. 

PRISONER. 

Charged  with  felony,  should  be  pie- 
sent  at  all  proceedings  in  his  cause,  3. 

PROVOCATION. 

— What  will  extenuate  to  manslaughter, 
45. 

Killing  upon  mere  words  always  mur¬ 
der,  45. 

Will  not  excuse  if  sought  for,  107.  131. 

Contemptuous  insulting  gestures,  with¬ 
out  an  assault,  will  not  excuse,  45. 

Nor  a  challenge,  though  accompanied 
with  taunts,  and  the  occasion  sudden, 
106. 

Pulling  by  the  nose  will  not  reduce  it 
below  manslaughter,  45. 

See  Assault. 

SESSIONS,  COURT  OF. 

Its  power  to  bail  for  manslaughter,  4. 

Where  there  is  also  an  inquisition  for 
wiurder.  Ibid. 


Its  jurisdiction,  5. 

Its  power  to  bail  in  general,  whence 
derived,  6. 


STATUTES  CITED. 

Act  concerning  the  Supreme  Court, 
186. 


- Declaring  the  powers  of  the  Courts 

of  General  Sessions  of  the  Peace,  4. 

- Concerning  the  Mayors’  Courts 

in  Albany  and  Hudson  :  and  the  Mayor’s 
Court  and  General  Sessions  of  the  Peace 
in  New-York,  6. 

- Declaring  the  punishment  of  cer¬ 
tain  crimes,  7. 

- To  prevent  unjust  imprisonment, 

by  securing  the  benefit  of  the  writ  of 
habeas  corpus,  11  13.  186. 

^*tat  6  Edw.  1.  ch!  'q  (  <3. 16.  IS.  26. 

Bill  of  Rights  of  New-York,  19.  27. 

Act  concerning  the  Courts  of  Common 
Pleas  and  General  Sessions  of  the  Peace, 
in  the  several  counties  of  this  state,  186. 

- To  vest  certain  powers  in  certain 

Judges  of  the  Courts  of  Common  Pleas, 
186. 


-  To  appoint  certain  commission¬ 
ers  to  perform  the  duties  of  Judges  of  the 
Supreme  Court,  186. 


ERRATA. 

Page  5,  line  22,  for  “26th,”  read  24th  of  December. 

Page  26,  line  12  from  the  bottom,  for  “  Hunt,™  read  Keat. 

Page  40,  at  the  bottom,  strike  out  the  part  repeated. 

Page  121,  line  32,  after  “  Goodwin,”  insert,  upon  James  Stough¬ 
ton. 

Ibid,  line  2  from  the  bottom,  for  “  indisputable,”  read  indispen¬ 
sable. 

The  following  incident  was  omitted.  (See  p.  181.) 

Before  the  jury  retired  to  reconsider  their  verdict,  the  prisoner, 
in  person,  requested  permission  of  the  Court  to  have  his  examina¬ 
tion  tajren  before  the  Mayor  previous  to  his  commitment,  read,  as  he 
hoped  it  would  explain  the  mystery  that  hung  over  the  transaction.. 
But  the  Court  said  it  was  too  late  now,  and  moreover,  that  it  could 
not  have  been  read  on  the  trial,  unless  the  prosecutor  had  introdu¬ 
ced  it. 


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